Disability Discrimination Act

T H E  D I S A B I L I T Y  D I S C R I M I N AT I O N
A C T ( 1 9 9 2 ) (D D A)

• prohibits discrimination, including indirect discrimination and harassment, on the basis of disability

• enables complaints to be lodged by or on behalf of a person who believes there has been discrimination on the basis of having a disability or of being an associate of a person with a disability

• enables representative complaints to be lodged on behalf of a class of people with a disability, or associates of people with a disability, who are believed to be discriminated against

• creates the position of Disability Discrimination Commissioner to investigate and conciliate complaints
• enables the Human Rights and Equal Opportunity Commission to conduct inquiries into complaints which are unable to be conciliated or which are considered unsuitable for conciliation

• enables the Commission to make a decision about an appropriate remedy where a complaint is found to be substantiated

• enables the development of Disability Standards

• makes it unlawful to breach Disability Standards

• enables the development of Action Plans to further the objects of the Act and which may be taken into account in proceedings under the Act
• creates a number of offences under the Act, in particular victimisation

• gives the Human Rights and Equal Opportunity Commission other functions to further the objects of the Act Introduction

Introduction

While legislation exists in Equal Employment Opportunity areas which prohibits discrimination in employment against people with disabilities, the Federal Disability Discrimination Act 1992 makes it unlawful to treat people with a disability less favourably than people without a disability in the areas of:

• employment

• education

• access

• provision of goods

• services and facilities

• accommodation

• buying land

• clubs and associations

• sport

• administration of Commonwealth Government laws and programs

What is a disability?

The definition of disability includes a disability:

• that exists

• that previously existed but no longer exists

• that may exist in the future

• that is thought to exist, is imputed

Included in the definition of a “disability” are:

• physical

• intellectual

• psychiatric

• sensory

• neurological

• learning

• physical disfigurement

• the presence in the body of disease causing organisms.

Those discriminated against may include:

• a person who has a legally defined disability

• a person who is an associate of a person who has a disability

This includes:

• a spouse

• a cohabitee

• a relative

• a carer

• a person in a business sporting or recreational relationship with a person with a disability

Specific Areas under the Act

Access

People with a disability have a right to have access to places used by the public.

The Disability Discrimination Act (DDA) makes it against the law for public places to be made inaccessible to people with a disability.

Places used by the public include:

• public footpaths and walkways

• educational institutions

• shops and department stores

• banks

• credit unions

• building societies

• parks

• public swimming pools

• public toilets and pedestrian malls

• cafes

• restaurants

• hotels

• theatres and other places of entertainment

• lawyers

• offices and legal services

• libraries

• sporting venues

• social and sporting clubs

• government offices

• public transport including trains, buses, ferries, boats, ships and planes

• dentists and doctors surgeries

• hospitals

• hairdressers and beauty salons

• travel agents

• government-run services

Access applies to existing places as well as places under construction. Existing places must be modified and be accessible (except where this would involve “unjustifiable hardship”).

Every area open to the public should be open to a person with a disability. He/she should expect to enter and make use of places used by the public if people without a disability can do so, for example:

• places used by the public should be accessible at the entrance and inside

• facilities should also be accessible (wheelchair-accessible toilets, lift buttons within reach, tactile and audible lift signals)

• rather than being confined to a segregated space or the worst seats, all areas within places used by the public should be accessible to people with a disability

Access to all places used by the public will not happen overnight. It is likely that some changes will be easier and quicker than others:

• kerb cuts, sound signals at pedestrian lights and talking Iifts are likely to happen more quickly than replacing inaccessible buses and train carriages

Examples of changes which have taken place at the request of people with a disability include:

a local council built footpath ramps, altered stairs, widened some paths and relocated post boxes and traffic signs to create access to three local shop
a ramp was installed at the front door of a bank to help a local customer independently conduct business furniture in a college canteen was rearranged to enable a student easier access and gave an improved traffic flow for everyoneWhile changes may not occur rapidly, they can be expected. People with a disability have every right to complain when they are discriminated against because a place is inaccessible to them.

Buying goods and using a service

People with a disability have a right to obtain goods and use services in the same way as people without a disability.

This includes goods, services and facilities from:

• shops and department stores

• cafes, restaurants, hotels

• theatres and other places of entertainment

• banks, credit unions, building societies

• lawyers and legal services

• sports and social clubs

• swimming pools

• public transport

• travel agents

• dentists, doctors, and hospitals

• hairdressers and beauty salons

• government-run services

The Disability Discrimination Act (DDA) makes it against the law for providers of goods, services and facilities to discriminate against a person with a disability because of their disability.

This means that providers of goods, services and facilities cannot:

• refuse to provide a person with a disability with goods, services and facilities

For example, he/she cannot be refused service in a restaurant because they have a guide dog with them; or cannot be refused hospital treatment because they are HIV positive.

• provide goods, services and facilities on less favourable terms and conditions

For example, charging more for a taxi because he/she uses a wheelchair; not providing a TTY line for deaf people to contact emergency services.

• provide the goods, services and facilities in an unfair manner

For example, making insulting remarks while serving the person with a disability; serving him/her after everyone else has been served.

It also means that a person with a disability has a right to enter the premises of providers of goods, services and facilities if people without a disability can do so.

Accommodation

A person with a disability has a right to obtain accommodation in the same way as people without a disability. This includes renting a flat, house, unit, or a room in a boarding house, hotel or motel.

The Disability Discrimination Act (1992) (DDA) makes it against the law for real estate agents, landlords or landladies and other providers of accommodation to discriminate against a person because of their disability.

This means that providers of accommodation cannot:

• refuse an application for accommodation because a person has a disability.

• provide accommodation for a person with a disability on less favourable terms and conditions.

For example, giving such person the least attractive room in the hotel or not allowing them to keep their guide dog in their flat.

• put their application on the bottom of the list.

For example, giving their application a lower priority because it is assumed they will be a less stable tenant.

Buying land

A person with a disability has a right to buy land or property in the same way as people without a disability.

The Disability Discrimination Act (1992) (DDA) makes it against the law for a real estate agent, land owner or other land and property agents to discriminate against a person because of their disability or the disability of their associates.

This means that an agent or land owner cannot:

• refuse to sell a person with a disability land or property

For example, refusing to sell a person a house because neighbours object to their disability or the disability of people they are buying the house for; or residents in a block of units refusing to sell a unit to a person because of their disability.

• offer a person with a disability land or property on less favourable terms and conditions

For example, offering to sell the land at a higher price.

Sport

People with a disability have a right to take part in sporting activities in the same way as people without a disability.

This means they must not be excluded from playing a sport if they are:

• capable of playing the sport, or

• selected to play the sport on the basis of their skills and abilities

Such members of the community should also not be excluded from any administrative or coaching activities associated with the sport.

For example, if they have the necessary skills to play cricket or swim competitively, they cannot be excluded because they have asthma or are deaf.

Clubs and associations

People with a disability have a right to be a member of a club or association in the same way as a person without a disability.

This includes sporting, social and licensed clubs, drama or music groups, political parties, business associations and self-help groups.

The Disability Discrimination Act (DDA) makes it against the law for clubs and associations to discriminate against a person because of their disability.

This means clubs and associations cannot:

• refuse to accept an application for membership

• provide membership on less favourable terms and conditions

For example, a club may want to offer part membership or charge more for membership.

• limit access to the benefits and activities offered by the club or association

For example, restricting the activities or the hours a person with a disability can use the club.

The Act also means that clubs and associations should provide adequate access to premises and facilities for people with a disability.

Employment

A person with a disability has a right to the same employment opportunities as people without a disability.

The Disability Discrimination Act (DDA) makes it against the law for an employer to discriminate against a person because of their disability.

Employers must offer equal employment opportunities to everyone. This means that if a person with a disability can do the essential activities or “inherent requirements” of a job, they should have just as much chance to do that job as anyone else.

For example, an essential activity or an “inherent requirement” for a telephonist’s job is the ability to communicate by telephone. But it is not an “inherent requirement” to hold the phone in the hand.

Employers should choose the best person for the job, whether they have a disability or not. They should make this decision based on a person’s ability to perform the essential activities of the job. They should not make assumptions about what a person can or cannot do because of their disability.

Protection exists against discrimination in:

• recruitment processes such as advertising, interviewing and other selection processes

• decisions on who will get the job

• the terms and conditions of employment such as pay rates, work hours and leave

• promotion, transfer, training or other benefits associated with employment

• dismissal or any other detriment such as demotion or retrenchment

The DDA also covers contract work and membership of partnerships of three or more people, as well as discrimination by:

• bodies with control over professional, trade or occupational qualifications

• federally registered trade union

• employment agencies

For example, it is unlawful for an employment agency not to refer a person to a job because of their disability, if they can do the essential activities or “inherent requirements” of the job.

Workplace changes

If a person with a disability is the best person for the job, then the employer must make workplace changes or “reasonable adjustments” if they need them to perform the essential activities of the job.

In most cases they will be able to tell the employer what they need. If necessary, employers should also seek advice from government agencies or organisations which represent or provide services to people with a disability.

“Reasonable adjustments” may include:

• changing recruitment and selection procedures

For example, providing a sign language interpreter for a deaf person or ensuring the medical assessor is familiar with a person’s particular disability and how it relates to the job requirements.

• modifying work premises

For example, making ramps, modifying toilets or providing flashing lights to alert people with a hearing loss.

• changes to job design, work schedules or other work practices

For example, swapping some duties among staff or regular meal breaks for a person with diabetes.

• modifying equipment

For example, lowering a workbench or providing an enlarged computer screen.

• providing training or other assistance

For example, induction programs for staff with a disability and co-workers, mentor or support person for a person with an intellectual disability, including staff with a disability, in all mainstream training.

If employers say changes are too difficult, the DDA does not require workplace changes to be made if this will cause major difficulties or will cost too much for a person or organisation. This is called “unjustifiable hardship”.

But before they can claim adjustments are unjustified, employers need to:

• thoroughly consider how an adjustment might be made

• discuss this directly with the person with a disability

• consult relevant sources of advice

It is up to the employer to show that adjustments are unjustified.

Education

A person with a disability has a right to study at any educational institution in the same way as any other student.

The Disability Discrimination Act (DDA) makes it against the law for an educational authority to discriminate against a person because of their disability.

This includes all public and private educational institutions, primary and secondary schools and tertiary institutions such as TAFE, private colleges and universities.

Educators must offer a person with a disability the same educational opportunities as everyone else. This means that if they meet the necessary entry requirements of a school or college, or they can do the essential course-work, they should have just as much chance to study as anyone else.

Educators must base their decisions on a person’s ability to meet the essential requirements of the institution or course. They should not make assumptions about what a person can or cannot do because of their disability.

The DDA protects against discrimination in education in the following areas:

A D M I S S I O N

• refusal or failure to accept an application for admission as a student

• accepting a person with a disability as a student on less favourable terms or conditions than others

For example, asking a person with a disability to pay higher fees.

A C C E S S

• denying or limiting access

For example, not being allowed to attend excursions or join in school sports; lectures delivered in an inaccessible format; inaccessible student common rooms.

• expelling a person because of their disability

• subjecting a person with a disability to any other detriment

• harassment

• comments or actions made about a person’s disability, such as insults or humiliating jokes

• comments or actions which create a hostile environment

Government services

The Federal Disability Discrimination Act (DDA) makes disability discrimination against the law in many areas of life.

This means that all governments in Australia – Commonwealth, state, territory and local government – have responsibilities under the DDA in other areas such as employment, education, access to premises and the provision of goods, services and facilities.

In every area of the administration of Commonwealth laws or programs it is against the law for any government body to treat you less fairly than a person without a disability.

This includes:

• access to places where Commonwealth programs are being run

• access to benefits to which people are entitled

• equal access to information about Commonwealth law

• access to voting places, facilities and information

• access to court buildings

Making a complaint

If people are discriminated against because of their disability, they can get confidential advice from or make a formal complaint to the Human Rights and Equal Opportunity Commission.

Complaints can be made by:

the person who has been discriminated against

a person affected by discrimination – on his or her own behalf and on behalf of others affected in the same way

a person on behalf of another person or other people who have been discriminated against (for example, an advocate)

an organisation on behalf of a person or other people who have been discriminated against (for example, a trade union)