Understanding disability and the law

There are laws against discrimination on the basis of disability at both state and Commonwealth levels.

The Equal Opportunity Act 2010 (Vic) (‘EO Act’) protects people against discrimination on the basis of disability.

In the EO Act, disability is defined as:

a total or partial loss of bodily function

(e.g. incontinence, hearing loss);

b the presence in the body of an organism that

may cause disease (e.g. bacteria causing blood

poisoning, hepatitis or HIV/AIDS virus);

c total or partial loss of a part of the body (e.g. loss

of fingers on one hand, hysterectomy);

d malfunction of part of the body, including:

i a mental or psychological disease or disorder

(e.g. schizophrenia); or

ii a condition or disorder that results in a person

learning more slowly than people who do not have

the condition or disorder (e.g. Down syndrome);

e malformation or disfigurement of a part of the

body (e.g. cleft palate, scarring). The definition includes present disability, past disability and ‘imputed’ disability (where a person is perceived to have, for example, a cognitive impairment or an acquired brain injury because they speak slowly). The definition also includes an impairment that may exist in the future (due to a genetic predisposition to that impairment) and, to avoid doubt, behaviour that is a symptom or manifestation of an impairment.

The Disability Discrimination Act 1992 (Cth) (‘DD Act’), which significantly predates the UNCRPD, does not cite the convention but aims to: a eliminate, as far as possible, discrimination against

persons on the ground of disability in the areas of:

i work, accommodation, education, access to

premises, clubs and sport;

ii provision of goods, facilities, services and land;

iii existing laws; and

iv the administration of Commonwealth laws

and programs; b ensure, as far as practicable, that persons with

disabilities have the same rights to equality before

the law as the rest of the community; c 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. Section 4 of the DD Act provides a similar, but even broader, definition of disability than the EO Act. It includes many conditions that are not commonly considered to be disabilities and, as with the EO Act, is more concerned about unfair and discriminatory treatment than with medical or technical accuracy.

In the DD Act, disability is defined as:

a total or partial loss of the person’s bodily or

mental functions; or

b total or partial loss of a part of the body; or

c the presence in the body of organisms causing

disease or illness; or

d the presence in the body of organisms capable

of causing disease or illness; or

e the malfunction, malformation or disfigurement

of a part of the person’s body; or

f a disorder or malfunction that results in the

person learning differently from a person without

the disorder or malfunction; or

g a disorder, illness or disease that affects a person’s

thought processes, perception of reality, emotions

or judgment or that results in disturbed behaviour;

and includes a disability that:

h presently exists; or

i previously existed but no longer exists; or

j may exist in the future (including because of

a genetic predisposition to that disability); or

k is imputed to a person. NOTE

Health The right to equality of access to healthcare services is articulated in both the EO Act and the DD Act and yet the DRC found that “there is a huge gap between the health outcomes experienced by people with disability and those experienced by the rest of the community”. The DRC found that “people with cognitive disability are subject to systemic neglect in the Australian health system”.

While there are a range of initiatives underway to improve health outcomes for people with disability, individuals concerned about their right to accessible healthcare should contact the Disability Liaison Officer for the relevant service to discuss their concerns. All health services should have accessibility information available on their website and in publicly available materials. Education It is unlawful for providers of education services to discriminate against a student or prospective student with disability. This includes all public and private educational institutions, primary and secondary schools, and tertiary institutions (TAFE, private colleges and universities). Educators must offer a person with disability the same educational opportunities as everyone else, including with regards to enrolment, if the entry requirements of a school or college are met.

Under the Victorian EO Act, education providers must not discriminate against a student with a disability unless the necessary facilities cannot be reasonably provided. There is also a requirement to make ‘reasonable adjustments’. The DD Act specifies that discrimination in admission, access and staff harassment are unlawful. It requires education providers to make ‘reasonable adjustments’ to their programs to ensure that students with disability can access these on the same basis as other students, unless doing so would present an ‘unjustifiable hardship’ to the provider. The DD Act applies a more stringent test than the EO Act to determine this.

Children with disabilities in Victorian schools have many difficulties receiving an education and are often subject to restrictive practices, isolation and restraint.

If a person is experiencing discrimination in an education setting, or is not being provided with appropriate support, it may be appropriate to seek the assistance of Association of Employees with Disability (AED) Legal Centre, Disability Discrimination Legal Service (DDLS), Victorian Independent Office for School Dispute Resolution or Youth Disability Advocacy Service (YDAS). (See ‘Contacts’ at the end of this chapter). NOTE Employment Under the DD Act, an employer or prospective employer cannot lawfully discriminate against a person on the grounds of a disability (from advertising vacancies to consideration for promotion) unless the person with disability is unable to perform the ‘inherent requirements’ or the core components of the job.

Under both the DD Act and the EO Act, there are requirements to make ‘reasonable adjustments’ to remedy discrimination and to meet the needs of employees with disability. In addition, when providing these adjustments in the workplace, the DD Act considers whether the costs of such adjustments present an ‘unjustifiable hardship’ to the employer. Considerations include the employee’s specific needs, the cost of the adjustment compared to the overall assets of the employer, and the impact of the adjustment on others.

Under the DSA (Cth), ‘supported employment services’ means services to support the paid employment of persons with disabilities: a for whom competitive employment at or above

the relevant award wage is unlikely; and b who, because of their disabilities, need

substantial ongoing support to obtain or retain

paid employment. NOTE Employees can bring ‘general protections’ or ‘general protections dismissal’ claims under the Fair Work Act 2009 (Cth) (‘FW Act’) for adverse action taken by an employer because of their ‘physical or mental disability’ (s 351). Further, under the FW Act (s 352), an employer must not dismiss an employee because the employee is temporarily absent from work due to illness or injury of a kind prescribed by the FW Regulations.

For more information about disability and employment, contact AED Legal Centre, JobWatch, Young Workers Centre or the Fair Work Ombudsman. (See ‘Contacts’ at the end of this chapter). Accommodation It is unlawful for providers of accommodation to discriminate against a person on the grounds of a disability under the DD Act or EO Act by refusing or deferring an application for accommodation, denying or limiting benefits associated with the accommodation, or evicting a person from accommodation on the basis of the person’s disability.

Private premises, including rental premises, are not subject to discrimination complaints relating to access to the built environment under the DD Act. However, the EO Act provides for complaints regarding any refusal to allow alterations (including their restoration) at the cost of the person with the disability. Other complaints about disability discrimination in accommodation are subject to the ‘unjustifiable hardship’ test (see ‘Employment’, above) under the DD Act. For more information about making complaints regarding discrimination, see Chapter 11.1: Discrimination and human rights. NOTE Access to premises Under the DD Act, it is unlawful for public places to be inaccessible to people with disability. Indeed, every area open to the public should be open to people with disability. A person with disability should expect to be able to enter and make use of places used by the public, if a person without disability can do so. This means being accessible at the entrance and inside buildings including facilities in these places (e.g. wheelchair-accessible toilets, lift buttons within reach, tactile and audible lift signals for people with vision impairments) and seating arrangements that are not second-rate or segregated. This applies to existing places as well as those under construction.

Building access issues also arise under other DD Act provisions, including in relation to employment, access to services, and accommodation. The Building Code of Australia (BCA) and Australian Standard 1428 (AS 1428) regulate access to buildings and establish minimum requirements in relation to access. These requirements form the Access to Premises Standard. For more information, see ‘Disability Standards’, below. Disability Standards Section 31 of the DD Act authorises the Commonwealth Attorney-General to formulate ‘standards’ to be known as Disability Standards in relation to employment, education, accommodation, provision of public transportation services and facilities, and administration of Commonwealth laws and programs.

Standards are compulsory and are designed to promote minimum compliance with disability access requirements. For more information contact the AHRC (see ‘Contacts’ at the end of this chapter).