Disability discrimination

Disability discrimination

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This covers all types of disability, including illness, injury, physical restrictions, mental illness, intellectual disability, having an infection (such as HIV or Hepatitis C), being at risk of developing a disability in future (such as carrying a particular gene) or having had a disability in the past. Discrimination can include treating the person unfavourably because of their disability, or because of assumptions made about people with that type of disability. Examples of disability discrimination include refusing to consider a job application from a person who uses a wheelchair or refusing to let a house to a person who has a guide dog.

Discrimination on the basis of disability also includes:

failure to provide special assistance or equipment where needed, if it would be reasonable to expect it to be provided;
failure to make reasonable adjustments to accommodate a disability, for example, adjusting a job so that an applicant with a disability would be able to do it – what is a reasonable adjustment will depend on all the circumstances, including costs and benefits;
failure to make public premises (such as shops and public offices) accessible to persons with a disability – however, it is not discrimination if making the premises accessible would cause undue hardship, for example, because it would be unreasonably expensive to make the changes needed;
refusal of service – for example, refusal of a taxi ride or admission to a restaurant because a person has a guide dog with them.

In accommodation, landlords are generally required to allow tenants to make reasonable alterations to the premises as needed to accommodate the disability, but at the tenant’s expense and on condition that the premises be restored to their former state at the end of the tenancy.

Separating a person from their guide dog, or refusing to allow them into a shop with their dog is also a criminal offence [Dog and Cat Management Act 1995 (SA) s 81].

Legislation

Equal Opportunity Act 1984 (SA)
Disability Discrimination Act 1992 (Cth)
Fair Work Act 2009 (Cth).

Areas of discrimination on basis of disability under SA law

Under Part 5 of the Equal Opportunity Act 1984 (SA) it is unlawful to discriminate on the basis of any disability.

Discrimination is prohibited in the following areas:

education
employment
accommodation
access to premises
sale of land
conferral of qualifications
provision of goods and services
superannuation
membership of clubs and associations.

Exemptions

There are exemptions in the following circumstances:

employment not connected with an employer's business
employment: where a person suffering from an impairment would not be able to adequately perform the work required for employment without endangering themselves or others or to respond adequately to emergency situations reasonably anticipated in connection with the work required
salary rates
conferral of qualifications, where a person suffering from an impairment would not be able to perform the inherent requirements of the occupation adequately or safely
educational institutions established wholly or mainly for the benefit of students with a particular impairment
provision of goods and services where the standard of provision required would be onerous or unreasonable
accommodation in one's own household
discrimination in the terms of an annuity, life assurance, accident insurance or any other form of insurance where it is based on reliable actuarial or statistical data
superannuation, where based on reliable actuarial or statistical data
superannuation schemes provided for employees to which the employer makes a contribution and where the greater number of employees reside outside of SA
charities for the benefit of persons with a particular disability
special measures for the benefit of persons with a particular disability
sporting activities
where access to a place or facilities cannot be provided due to the unjustifiable hardship it would impose
measures taken to limit the spread of an infectious disease.

Areas of discrimination on basis of disability under Commonwealth law

Discrimination is prohibited pursuant to the Disability Discrimination Act 1992 (Cth) in the following areas:

education
employment
accommodation
access to premises
interest in land
conferral of qualifications
provision of goods and services
superannuation
membership of clubs and associations
registered organisations
administration of Commonwealth laws and programs
sport.

Exemptions

Employment - it is not unlawful if:

a person is unable to carry out the inherent requirements of the job
in order to carry out the inherent requirements of the job the employer would have provide such facilities or services as would impose unjustifiable hardship to the employer
the employment is for domestic duties in a private residence
the possible conferral of a qualification by qualifying bodies in circumstances where the person cannot meet the major inherent requirements of profession or trade.

Education - it is not unlawful if:

it would impose unjustifiable hardship on the educational facility, or
the education is for people with a particular disability.

Accommodation - it is not unlawful where:

the accommodation is for a particular disability and is supplied by a voluntary body
provision of the accommodation would cause unjustifiable hardship, or
the accommodation is only for a maximum of four people and includes the owner or a near relative in residence.

The following, whilst not strictly speaking exemptions, are defences against an action of disability discrimination and also need to be considered:

access to premises defence - if altering the premises would result in unjustifiable hardship
goods and service defence - if the supplier would suffer unjustifiable hardship to supply the goods in the way they need to be supplied
incorporated clubs and associations defence - if the association is for people with a particular disability or if there is unjustifiable hardship in providing the benefit in a particular way which is needed as a result of a disability, or
sport defence - if the sport is organised for people with a particular disability or the person cannot perform the necessary actions required for the sport or a selection is based on relevant skills.

It is up to the person who claims a defence of unjustifiable hardship to prove this. All relevant factors, such as the costs and benefits, can be taken into account.

Making a complaint

Complaints can be made to the Australian Human Rights Commission (Cth) or the Equal Opportunity Commission (SA). There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims may be made to the Fair Work Commission, see the Employment chapter on protected workplace rights: General Protections.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, this time period was 6 months. If the complaint alleges a human rights breach and discrimination in employment pursuant to the ILO Convention, in which case the time frame is 12 months.

The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93].

General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394].

Other Assistance Available

Disability Access Reporting Tool

The Office for the Commissioner for Equal Opportunity (OCEC) has launched a tool to support people living with disability report difficulties accessing public venues and businesses. Businesses are expected to make reasonable adjustments for people living with disability.

The Disability Access Reporting Toolkit DART is an online reporting form that triggers an email directly to owners/operators, as well as those responsible for public buildings, informing them about access issues experienced by the user and venue responsibilities under equal opportunity legislation.

Should a business not take action to address the concerns raised via the DART email, the user may choose to make a formal complaint to the Office of Equal Opportunity. The user can then show that they have attempted to resolve the issue using DART prior to making a complaint. DART is an optional step, and is not required prior to making a formal disability discrimination complaint.

Disability Information and Legal Assistance Unit

The Disability Information and Legal Assistance Unit (DiLA) is a new unit of the Legal Services Commission. DiLA has been established as a resource centre which provides specialised information and legal advice for South Australians with disability, as well as their supporters and advocates. The free Legal Help Line is the starting point for getting legal information and legal advice. Call 1300 366 424 between 9:00am – 4:30pm, Monday to Friday. The Legal Help Line advisers will listen to you and will provide you with options for general legal problems. Advisers can also help you connect with other services, and can make an appointment for you with a specialist DiLA lawyer. Please visit the Disability Information and Legal Assistance Unit web page for further information about accessing the service.

Disability discrimination : Last Revised: Wed Dec 14th 2022
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.

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