FAQ: What is disability discrimination?

FAQ: What is disability discrimination?

How is discrimination defined under the Disability Discrimination Act?

It is discrimination under the D.D.A. to treat a person less favourably, because of his or her disability, than a person without that disability would be treated in the same or similar circumstances. This is also known as direct discrimination. (See section 5 of the DDA.)

The D.D.A. also covers discrimination where the same treatment applies to people with and without a disability but the impact is to disadvantage or exclude people with a disability in a way which is not reasonable. This is known as indirect discrimination. (See section 6 of the DDA.) For example: stairs are the same for everyone but some people cannot use them; print on paper is the same for everyone but some people cannot read it.

Changing rules or requirements, premises or equipment so that indirect discrimination does not occur is often referred to as making reasonable adjustments.

It is also discrimination to treat a person with a disability less favourably because he or she uses an assistive device (see section 7 of the DDA), or is accompanied by a accompanied by an interpreter, reader, assistant or carer (see section 8 of the DDA) or by a guide dog, hearing dog or other animal trained to provide assistance (see section 9 of the DDA).

To be unlawful under the DDA, something unfair or unwelcome that happens to a person with a disability has to come within these definitions.

More details of how discrimination applies in different areas under the DDA is provided in other FAQ material on this site, in our brief guide to the DDA, and in standards and guidelines on some issues.

Does the High Court decision in Purvis v NSW mean there is no duty of reasonable adjustment under the DDA?

No.

The decision of the Full Federal Court in Clarke v Catholic Education Office makes clear that the decision of the High Court in Purvis v NSW deals only with the limits of the meaning of direct discrimination under the DDA, and is not a decision that there is no duty under the DDA to provide reasonable adjustments to accommodate a person's disability.

Reasonable adjustments may be required to avoid a finding of indirect discrimination. The failure to provide accommodation for a person with a disability may result in that person being unable to comply with a requirement or condition and, if this is considered to be unreasonable in all of the circumstances of the case, this may result in a finding of indirect discrimination. The following extracts from the decision of Justices Sackville and Stone set the relevant principles out clearly.

"In Purvis, the student had exhibited violent behaviour at school in consequence of a condition attributable to brain damage suffered in infancy. The school Principal and the Department of Education determined that [the student] should be enrolled in a special school and should be excluded from the school he was attending."

"The appellant contended that the case was one of direct discrimination. The High Court held that the exclusion of the student did not satisfy the requirements of s 5, since the educational authority would have treated a non-disabled student exhibiting the same behaviour in the same way."

"…it is necessary to take into account that Purvis was not argued as a case of 'indirect disability discrimination' of a kind covered by s 6 of the DD Act."

"The joint judgment specifically stated that none of the considerations to which their Honours had referred 'denies the importance of giving full effect to the indirect disability discrimination provisions of the [DD Act]'. Their Honours also explicitly recognised that 'there is considerable room for debate about when apparently "equal" treatment is to be understood as being discriminatory and apparently unequal treatment is not.'"

"The reasoning in the joint judgment in Purvis does not support the proposition that the appellants appeared to be urging, namely that the DD Act should be construed so as to preclude any requirement that an educational authority 'discriminate positively' in favour of a disabled person. The concept of 'positive discrimination' is itself of uncertain scope and does not provide a sure guide to the construction of the statutory language, in particular to s 6 of the DD Act."

Do these principles apply to other areas covered by the DDA including employment?

Yes. These comments were made in relation to discrimination and reasonable adjustment in education but clearly are also relevant to how section 6 of the DDA should be applied in relation to other areas including employment.

The explanatory memorandum and second reading speech accompanying the introduction of the DDA clearly indicate that the Act was intended to require employers (and other parties with obligations under the legislation) to make reasonable adjustments to accommodate people with disabilities - subject to a range of important limitations, in particular by reference to the concepts of "unjustifiable hardship" and the "inherent requirements" of a particular job.

As noted above, requirements under the DDA to make reasonable adjustments arise from DDA section 6, which (shortly stated) defines indirect discrimination as including any unreasonable requirements which disadvantage people with a disability.

In the context of employment, relevant requirements also arise from DDA section 15(4) which provides that it is not unlawful to dismiss or refuse to employ a person who, because of disability, cannot perform the inherent requirements of the job without additional services or facilities - but only if providing those services or facilities would impose unjustifiable hardship.

Comments made in some decisions following the Purvis case on issues related to reasonable adjustments (including Fetherston v Peninsula Health and Others ) need to be read in the light of the Full Court decision in Clarke. Comments made in the course of two recent Federal Court decisions, however, appear to indicate a view that, because section 5(2) has been found by the High Court not to impose a general duty to make reasonable adjustments as part of the concept of direct discrimination, failure to make such adjustments will not contravene any provision of the DDA.

In Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 (5 May 2004), the Full Federal Court decided that there was no direct discrimination in terminating the employment of an officer who (because of a depressive illness) had been absent from duty for an extended period, since an officer without a disability with whom the employment relationship had similarly broken down would have been treated similarly. It is clear from the judgment however that the Court in this case did not have the benefit of any useful argument on indirect discrimination, such as was presented in the Clarke case.

What is a requirement or condition for the purposes of section 6 of the DDA?

In Catholic Education Office v Clarke, Justices Sackville and Stone emphasised that it is a question of fact in each case whether a requirement or condition has been imposed, and that there need not be a formal or explicit rule or restriction:

"Several additional propositions relevant to the present case can be derived from Waters v Public Transport Commission. First, the identification of the services provided by the alleged discriminator, for the purposes of s 24(1)(b) of the DD Act, is a question of fact"

"Secondly, the expression 'requirement or condition' in s 6 of the DD Act should be construed broadly to include any form of qualification or pre-requisite, although the actual requirement or condition should be formulated with some precision … In this respect, the legislation should be given a generous interpretation and an alleged discriminator should not be permitted to evade the statutory prohibition or indirect discrimination by defining its services so as to incorporate the alleged requirement or condition …"

"Thirdly, an alleged discriminator may be found to insist on compliance with a 'requirement or condition' within s 6 even though the requirement or condition is not explicitly imposed. It is sufficient for the requirement or condition to be implicit in the conduct which is said to constitute discrimination … Hence in Waters v Public Transport Commission itself, it was held to be open to the Victorian Equal Opportunity Board to find that the removal of conductors from Melbourne's trams amounted to a requirement or condition that disabled people could fully avail themselves of the services only if they could use the trams without the assistance of conductors.."

Some barriers to access by a person with a disability may rise from inherent features of the education offered rather than being a "condition or requirement" and thus will not involve unlawful discrimination.

Justices Stone and Sackville stated:

"If a term or condition of admission to an educational institution simply defines the nature of the institution, or the educational services provided by that institution, it may well not constitute a 'requirement or condition' for the purpose of s 6 of the DD Act. If, for example, a business college admits only persons who undertake to study accountancy in the first year of the course, this may be a term or condition on which it is prepared to admit a person as a student for the purposes of s 22(1)(b) of the DD Act, but not necessarily a requirement or condition for the purposes of s 6."

In the same case the Federal Court had found a requirement or condition in requiring a student to be able to participate in class without an Auslan interpreter. The Full Court confirmed this approach:

"The appellants did not submit that the primary Judge had failed to advert to or had incorrectly stated these principles. His Honour pointed out that it is not inherent in high school education that a student undertake classes without the aid of an interpreter. Indeed, in the computer age it is not necessarily inherent that instruction be given in English or any other spoken language."

What is reasonable?

The Full Court in Catholic Education Office v Clarke helpfully summarised decisions in this area as including the following:

(i) The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances
(ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable.
(iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. The question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case..
(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition. However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable.

The Full Court endorsed the need to act with 'an appropriate degree of diffidence' in assessing the actions of an educational institution in respect of which there may be a division of opinion (while also endorsing the Federal Court's finding that requiring the deaf student concerned to participate in and receive classroom instruction without an interpreter was unreasonable.) See now also the Full Court decision in Hurst v Education Queensland.

Does a barrier have to be permanent to be unlawful?

No.

Suggestions to this effect in one case under the Queensland Anti-Discrimination Act, Hosking v Lachlaur Pty Ltd t/as McDonald's Atherton , should not be relied on, at least in relation to the DDA.

The questions to be answered in finding whether there is indirect discrimination are: was a condition or requirement imposed; was the person with a disability able to comply with it; and was it reasonable. There is no further question stated or implicit in the legislation "was it permanent or temporary".

Temporariness of a barrier may of course be relevant to reasonableness. For example, equipment such as lifts may unavoidably suffer mechanical failure and be temporarily out of service. This may be found not to impose an unreasonable barrier so long as reasonable measures are taken to minimise such occurences including the equipment being well maintained and regularly inspected.

But it is not at all likely to be a good defence to a claim of discrimination, when a person urgently needs but cannot enter an accessible toilet because it has been used as a storeroom, that the chairs etc were only stacked there temporarily.

The selection and design of the facility etc may also be relevant to reasonableness. While it may be reasonable and unavoidable for the performance of any device or facility to degrade between maintenance points, this does not necessarily mean it is reasonable for it to start in new or freshly maintained condition at the minimum performance required by access standards and degrade below that point. Where possible, it would be reasonable to expect that "best" performance will be above the minimum performance levels required for access so that expected minimum performance will still not be below such minimum levels.

Does the special measures section protect any action done in good faith?

Section 45 of the DDA protects actions which are reasonably intended to afford people with a disability, or with a particular disability, access to opportunities or access to services to meet their special needs, in relation to education or to other areas covered by the DDA.
Justices Sackville and Stone in Clarke v Catholic Education Office provided a number of helpful comments on the scope of this provision:

  • the section should receive an interpretation consistent with the objectives of the legislation.
  • an expansive interpretation of an exemption in anti-discrimination legislation may well threaten the underlying object of the legislation.
  • Section 45 is primarily designed to make lawful affirmative conduct, 'reasonably intended' to provide services or facilities to disabled people that are not available to the general community or to provide benefits to particular classes of disabled persons to meet their special needs, even though the benefits are not made available to other disabled people.
  • DDA section 45, in requiring an act to be "reasonably intended" for the purposes referred to, is narrower than provisions in some State equal opportunity laws which refer to conduct 'designed' to meet special needs.
  • DDA section 45 requires an objective assessment of reasonableness rather than only a subjective beneficial intent. (In this case the Court commented that "the findings made by the primary Judge were inconsistent with the conclusion that the appellants' conduct was reasonably intended to achieve any of those objectives. His Honour found that any adult should have known that the withdrawal of Auslan support would cause [the student] distress, confusion and frustration and that, in the absence of an Auslan interpreter, [the student] would not have received an effective education. Whatever the subjective intentions of the appellants' officers, it could not be said that the particular act otherwise rendered unlawful satisfied the objective standard incorporated into s 45. ")
  • The "act" protected by section 45 has to be identified carefully. The court in this case did not accept that the relevant act was the offer of a model of support which was not available to students without the disability: "… the 'act' rendered unlawful by ss 6 and 22(1)(b) of the DD Act was the appellants' offer of a place subject to a term or condition that Jacob participate in and receive classroom instruction without an interpreter. On no analysis could it be said that this act was reasonably intended to achieve any of the objectives set out in s 45(a), (b) and (c)."

Is being insulted or offended in public or the media discrimination under the DDA?

No.

The DDA only applies in the areas of life specified in the DDA itself, such as employment, education and provision of goods and services. In these areas, insulting or offensive comments can amount to discrimination.

But outside these areas, the DDA does not cover being insulted in public, or being offended by material in the media.

Some State legislation does cover public harassment or vilification. Check details with your State discrimination authority.

Is a lack of sufficient government funding or provision of disability services discrimination under the DDA?

No, not in itself.

The Disability Discrimination Act (and equivalent State and Territory laws) do not make in unlawful for governments to fail to establish or fund adequate programs or services for people with disabilities. This legislation only makes it unlawful to discriminate in access to whatever programs and services governments do put in place.

Securing adequate funding for treatment, rehabilitation and other disability specialist services remains largely a matter of political processes and attempting to persuade governments to give a higher priority to disability issues.

However, the Disability Discrimination Act does apply where inadequate funding or support leads to discrimination in services which government does provide (for example in public school education).

Is it unlawful to discriminate because a person does not have a disability?

No. The DDA applies to discrimination because of a disability which a person has, or had in the past, may have in the future or is thought to have. If services or opportunities are offered only to persons who have a disability, or a particular disability, and a person does not have a disability or the particular disability required, it is not unlawful discrimination to refuse them the service or opportunity.