The Disability Discrimination Act 1992 is a comprehensive piece of legislation aimed at protecting the rights of people with disabilities. The Act covers a wide array of situations and has been amended extensively over time. It places legal obligations on a range of actors and provides mechanisms for enforcement through the Australian Human Rights Commission, and the potential for penalties, and exemptions in some specific contexts. Key to the effective implementation of the Act is understanding the broad definition of disability and the principles of reasonable adjustment and unjustifiable hardship.
• To eliminate discrimination against persons with disabilities in various areas. These areas include work, accommodation, education, access to premises, clubs, and sports, as well as the provision of goods, facilities, services, land, existing laws, and the administration of Commonwealth laws and programs.
• To ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community.
• To 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.
Prohibition of Discrimination: The core of the DDA is to prohibit discrimination against people with disabilities in various areas of life. This includes employment, education, access to premises, accommodation, land, clubs/associations, and the provision of goods and services. The Act defines discrimination as treating someone with a disability less favorably, or failing to make reasonable adjustments for their disability.
Definition of Disability:
The Act provides a broad definition of "disability," encompassing physical, mental, and learning-related impairments. Critically, this includes:
• Current, past and future disabilities, including imputed disabilities and genetic predispositions.
• "Behaviour that is a symptom or manifestation of the disability".
• Loss of bodily or mental functions, loss of part of the body, presence of disease causing organisms, malfunctions and disfigurements.
Reasonable Adjustments & Unjustifiable Hardship:
The DDA emphasizes the concept of "reasonable adjustments." These are modifications or accommodations that must be made to ensure people with disabilities have equal access and opportunities. However, the Act recognizes that there are limits; adjustments do not have to be made if they would impose "unjustifiable hardship" on the person or entity responsible for making them.
• The document defines a "reasonable adjustment" as "an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person."
• The relationship between these is further clarified in s 29A : "This Division (other than section 30) does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator."
Associates: The Act extends protection to people who have an "associate" with a disability. This means that discrimination against someone due to their relationship with a person with a disability is also unlawful. The definition of associate includes "a person who is related to the first-mentioned person by blood, marriage, affinity or adoption."
• "this Act has effect in relation to a person who has an associate with a disability as if: (a) each reference to something being done or needed because of a disability were a reference to the thing being done or needed because of the fact that the person has an associate with the disability; and (b) each other reference to a disability were a reference to the disability of the associate."
Disability Standards: The Act provides for the creation of "disability standards" which are more specific and detailed regulations to guide compliance. These standards can address areas such as reasonable adjustments, harassment prevention, and exemptions. "A disability standard may: (a) deal with the following: (i) reasonable adjustments; (ii) strategies and programs to prevent harassment or victimisation of persons with a disability; (iii) unjustifiable hardship; (iv) exemptions from the disability standard". The Act makes contravening a disability standard unlawful.
Harassment: The Act prohibits harassment of a person with a disability in several contexts, such as employment, education, and the provision of goods and services. Harassment is defined as unwelcome conduct that is offensive, intimidating, humiliating, or threatening, and which is related to the person’s disability.
Action Plans: Organizations can create "action plans" that outline how they intend to comply with the DDA. These plans should include strategies for achieving the Act’s objectives, communication of policies, and ongoing review. They are not mandatory. "The action plan must include provisions relating to: (a) the devising of policies and programs to achieve the objects of this Act; and (b) the communication of these policies and programs to persons".
Australian Human Rights Commission (AHRC): The AHRC plays a crucial role in administering the DDA. They have various functions, including promoting understanding, monitoring disability standards, receiving action plans, conducting research, and examining enactments for consistency with the Act.
Disability Discrimination Commissioner: The DDA establishes the position of a Disability Discrimination Commissioner who works as part of the AHRC. This role includes specific responsibilities to advance the rights of people with disabilities.
Key Provisions and Facts:
Coverage: The DDA applies throughout Australia and to actions within a Territory. It has specific provisions related to Commonwealth employees, entities, programs and laws. There are also stipulations about the way the act interacts with the States, including:
• The Act is intended to operate concurrently with state/territory laws relating to discrimination on the grounds of disability, with the exception of Disability Standards.
• Where a complaint has been initiated under a state or territory law relating to discrimination, the person can not also make a complaint to the AHRC. Areas of Discrimination: The Act makes it unlawful to discriminate in the following areas:
• Employment: Discrimination is prohibited in hiring, firing, and all aspects of employment.
• This covers "where the other person employs the aggrieved person; or (b) the other person engages the aggrieved person as a commission agent; or (c) the aggrieved person works for the other person as a contract worker; or (d) the other person and the aggrieved person are members of a partnership".
• Education: Discrimination is prohibited in admissions, access to benefits, and curriculum development.
• Access to Premises: Discrimination is unlawful in terms of access, use of facilities, and alterations to premises (with a right to make reasonable alterations to accommodation).
• Accommodation: It is unlawful to discriminate when providing accommodation. Exceptions exist for certain types of private residences and accommodation offered by registered charities exclusively for people with a particular disability.
• Land: Discrimination in the sale or leasing of land is prohibited.
• Clubs and Incorporated Associations: Discrimination against members and prospective members of clubs and associations is prohibited.
• Goods and Services: Discrimination is unlawful in providing goods, services, and facilities. This includes banking, insurance, entertainment, transport, telecommunications and services provided by professionals, government and local government.
• Harassment is prohibited in employment, education and the provision of goods and services.
• Offenses: The Act establishes a number of offences:
• "Victimisation" for threatening or subjecting a person to a detriment because they have made a complaint, given information, or participated in an investigation under the Act.
• "Inciting" unlawful acts.
• Publishing discriminatory advertisements.
• Exemptions: The DDA provides a number of exemptions:
• Special measures designed to promote equality for people with disabilities are exempt from the anti-discrimination provisions of the Act if they are necessary to achieve that purpose.
• Superannuation and insurance if based on actuarial or statistical data, or where that is not possible, on reasonable grounds.
• Actions taken under statutory authority (including court orders and fair work instruments.)
• Infectious diseases.
• Charities.
• Pensions, allowances, and benefits under specific legislation (e.g., social security and veterans' affairs).
• Migration.
• Combat duties and peacekeeping service.
• Assistance animals.
• The Commission has the power to grant exemptions from the operation of the Act for up to five years.
• Delegation of Powers: Both the Commission and the Commissioner have the authority to delegate powers to staff and other persons.
• Liability of Persons Involved in Unlawful Acts: Anyone who "causes, instructs, induces, aids or permits another person to do an act that is unlawful" is considered to have done the act themselves. This also extends to directors, employees and agents. A body corporate is liable for conduct by directors, employees or agents unless they took reasonable precautions and due diligence to avoid the conduct.
• No Private Right of Action: Unless otherwise specifically provided, the DDA does not allow individuals to bring private civil lawsuits based on unlawful conduct. "This Act does not confer on a person a right of action in respect of the doing of an act that is unlawful under a provision of Part 2 unless a provision of this Act expressly provides otherwise."
• Protection from Civil Actions: The DDA provides protection from civil actions for the Commission, Commissioner, staff of the Commission, and others acting under their authority, when exercising their functions.
• Non-disclosure of Private Information: The Act has strict provisions about the disclosure of private information gathered under the Act. "A person who is...the Commissioner...must not, either directly or indirectly: (a) make a record of, or divulge or communicate to any person, any information...or (b) make use of any such information; or (c) produce to any person a document...". The penalty for doing so is up to two years imprisonment.
• Information Storage: If information is stored electronically, the duty to produce a document means that it must be capable of being produced as a written document.
• Federal Court Jurisdiction: The Federal Court has exclusive jurisdiction over matters arising under the provision for the Commission to compel a person to give information.
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