Protecting the Rights of People with Disabilities in Australia
The Disability Discrimination Act 1992 (DDA) 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, with potential 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.
The Disability Discrimination Act has three primary goals:
To eliminate discrimination against persons with disabilities in various areas including work, accommodation, education, access to premises, clubs, sports, and the provision of goods, facilities, and services.
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.
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.
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
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.
An adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person. These modifications ensure people with disabilities have equal access and opportunities.
The DDA does not render it unlawful for a person to discriminate against another person on the ground of a disability if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.
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."
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 deal with:
Reasonable adjustments
Strategies and programs to prevent harassment or victimisation of persons with a disability
Unjustifiable hardship
Exemptions from the disability standard
The Act makes contravening a disability standard unlawful.
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.
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.
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.
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.
The Act makes it unlawful to discriminate in the following areas:
Discrimination is prohibited in hiring, firing, and all aspects of employment. This covers employment relationships, commission agents, contract workers, and partnerships.
Discrimination is prohibited in admissions, access to benefits, and curriculum development. Educational institutions must provide equal access to all students with disabilities.
Discrimination is unlawful in terms of access, use of facilities, and alterations to premises. There is a right to make reasonable alterations to accommodation.
It is unlawful to discriminate when providing accommodation. Exceptions exist for certain types of private residences and accommodation offered by registered charities.
Discrimination is unlawful in providing goods, services, and facilities. This includes banking, insurance, entertainment, transport, telecommunications, and services provided by professionals and government.
Discrimination against members and prospective members of clubs and incorporated associations is prohibited.
The DDA applies throughout Australia and to actions within a Territory. It has specific provisions related to Commonwealth employees, entities, programs and laws. 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.
The Act establishes a number of offenses:
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
The DDA provides a number of exemptions:
Special measures designed to promote equality for people with disabilities are exempt from the anti-discrimination provisions 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
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
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. The 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.
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