Frequently asked questions: Who is protected by the DDA?

Frequently asked questions: Who is protected by the DDA?

Who are people with a disability
Associates of people with a disability
How does the DDA define disability
Does disability have to be permanent?
Does disability have to limit a person's functioning?
Is "reverse discrimination" because a person does not have a disability unlawful?
Is attention deficit disorder a disability under the DDA
Are allergies and other physical sensitivities covered?
Is stuttering covered?
Does the DDA apply to discrimination based on transsexualism
Is unusually short or tall stature a disability under the DDA
Is obesity covered by the DDA
Are drug addiction and substance use covered by the DDA
Are people with HIV/AIDS, hepatitis or other communicable diseases covered?
Are people with Alzheimers disease or dementia covered?
Are people who have, or have had, cancer covered?

Are people with chronic pain covered?
Are people who wear glasses covered?
Is there correct language to use about people with a disability?

Who are people with a disability?

Anyone in the community may experience disability at some time in life. Disability is a normal part of the human experience, and people with disabilities are part of all sections of the Australian community: men, women, and children; indigenous and non-indigenous; employers and employees; students and teachers; consumers and citizens.

Australian Bureau of Statistics figures indicate that 20 per cent of the Australian population, or more than three million people, have one or more disabilities; and that this proportion is increasing, in particular with the ageing of the population.

The Australian Institute of Health and Welfare predicts that, on average, men in Australia as they age can expect to live nearly 19 years of their lives with a disability (and more than 5 years with a "severe or profound" disability) while women, living longer, can expect to experience nearly 21 years of disability and over 8 years of severe or profound disability.

The DDA protects an even broader section of society than this because

  • it also protects people who are associates of people with a disability (including families, friends and carers);
  • the DDA definition of disability is wider at important points than the definition used by the ABS (for example, the ABS excludes short-term disabilities lasting less than six months and is thus likely to understate mental disorders in particular, while the DDA covers these);
  • people who do not have a disability now may face disability discrimination in the future; and
  • the DDA prohibits discrimination on the basis of imputed disability.

Detailed and accurate figures on the numbers of people with particular disabilities are not easy to obtain. However, here are some estimates:

  • Mental disorders / psychiatric disabilities: Around 1 in every 5 Australians, or over 3 million people, experience a mental disorder of some kind, with 170,000 experiencing at least one schizophrenic episode and up to 10 per cent experiencing depressive disorders (figures cited in the Commission's National Inquiry into the Human Rights of People with Mental Illness, 1993) including 10% of mothers experiencing postnatal depression (W.A. Disability Services Commission, "Disability Counts", 1997)
  • Physical disabilities: 14 percent of the community, or around 2.6 million Australians, have a physical disability of some kind (Australian Bureau of Statistics figures). This includes, for example, people with respiratory disorders such as asthma; people with neurological disorders such as MS, cerebral palsy or epilepsy; people with muculoskeletal disorders such as arthritis or spinal injuries; people with immunological disorders such as HIV/AIDS; as well as people with other disorders such as diabetes, kidney disease, or cancer.
  • Sensory disabilities: Over 1 million Australians have a significant hearing impairment, with around 30,000 Australians totally deaf. Around 300,000 Australians have a substantial vision impairment (i.e. not correctable by glasses), with around 20,000 totally blind (Commonwealth Disability Strategy figures)
  • Intellectual disabilities: Around 2 percent of the population, or 400,000 Australians, have an intellectual impairment (Definition and Prevalence of intellectual disability in Australia, Aust. institute of Health and Welfare, 1997)

See the Australian Bureau of Statistics publications

and the Australian Institute of Health and Welfare publication

See also the Commonwealth Disability Strategy fact sheets

"Some facts and figures about people with disabilities in Australia" and "What is a disability".

There are many different kinds of disability and a wide variety of situations people experience.

  • The disability may be permanent or temporary.
  • It may exist from birth or be acquired later in life.
  • A person may have one disability or a number of disabilities.
  • A person may be treated as having a disability when in fact he or she does not.
  • A person's disability may be apparent, such as loss of a limb; or hidden, such as epilepsy or a depressive illness.
  • Disability may be more or less severe in its impact.
  • People with the same disability are as likely as anyone else to have different abilities.

Associates of people with a disability

The DDA makes it unlawful to discriminate against a person because that person is an associate of a person with a disability. "Associate" is defined to include, but is not limited to

  • a spouse or person living with a person with a disability
  • a relative or carer or
  • a person in a "business, sporting or recreational" relationship with a person with a disability.

"Associate" for this purpose clearly includes work colleagues or friends. Any other association which is sufficient to cause discrimination, is also likely to be sufficient to make a person an "associate" for the purposes of the DDA.

The Commission has dealt with complaints from families of deceased people with disabilities, on the basis that a person can remain an associate of a person with a disability despite the fact that the person with a disability has died.

How does the DDA define disability?

The definition of disability for the purposes of the DDA is

  • total or partial loss of the person's bodily or mental functions
  • total or partial loss of a part of the body
  • the presence in the body of organisms causing disease or illness
  • the presence in the body of organisms capable of causing disease or illness
  • the malfunction, malformation or disfigurement of a part of the person's body
  • a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction
  • a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

The DDA makes it unlawful to discriminate against a person because of a disability

  • which he or she has
  • which he or she used to have
  • which he or she may have in the future
  • which is imputed to him or her
  • of an associate, such as a friend, partner, carer or family member of the person.

Discrimination is also unlawful where it occurs because a person with a disability

  • uses a palliative, therapeutic or assistive device
  • is accompanied by a carer, interpreter, reader or assistant
  • is accompanied by a guide or hearing dog or other trained assistant animal.

A person does not gain any special rights or benefits by coming within the definition of disability under the DDA - only the right not to be discriminated against.

The definition of disability in the DDA only applies for the purposes of the DDA. It does not change the definition of disability regarding eligibility for benefits or services under other legislation, such as the Disability Services Act, the Social Security Act or workers' compensation legislation.

The DDA does not limit protection to people whose disability is permanent or visible or which limits them in a "major life activity", as some State legislation requires.

Not everyone with a disability experiences any significant functional limitation, or handicap, as a result. Similarly, protection is not limited to people who qualify for benefits or other government assistance for people with particular levels or types of disability. How a person's disability was acquired is not relevant to whether the DDA applies to that disability.

Does disability have to be permanent to be covered by the DDA?

No.

There is nothing in the definition of disability in section 4 of the DDA requiring a disability to be permanent in order to be covered. Just because a disability is temporary does not mean it is trivial or not "real" - or that discrimination on the basis of this disability is acceptable.

Illnesses and injuries will commonly lead, even if only temporarily, to one or more of the elements of the DDA definition of disability being satisfied. This in itself creates no special entitlements: only the right not to be unlawfully discriminated against. Whether a person requires reasonable adjustments because of a temporary disability depends on the particular circumstances.

Does disability have to limit a person's functioning to be covered by the DDA?

No. Some overseas discrimination laws include this requirement but the DDA does not. So, for example:

  • a person with an illness or condition which has been, or is being, effectively treated or managed is still protected if they are discriminated against because of the illness or the treatement.
  • a person is still protected against discrimination even if any practical limitation arising from their disability is removed by use of assistive equipment

Is "reverse discrimination" because a person does not have a disability unlawful?

No. The DDA provides for complaints only where a person alleges discrimination on the basis of a disability which that person has (or which is imputed to him or her, or he or she had in the past or may have in the future or the disability of an associate). A complaint that a person has been discriminated against because he or she does not have a disability or the particular disability which is a criterion for eligibility for a program or opportunity has no basis in the DDA. In any event, section 45 of the DDA specifies that the discrimination provisions of the legislation do not make it unlawful to do any act which is "reasonably intended" to ensure that persons who have a disability have equal opportunities with other persons or afford persons who have a disability or a particular disability opportunities to meet their special needs in relation to employment and other areas.

Is attention deficit disorder a disability under the DDA?

Once there is sufficient evidence that a particular learning difficulty is the result of an identifiable disorder, the matter will be covered by the DDA. Whether a disability is established as existing will be a matter for determination on the facts of each case.

Are allergies and other physical sensitivities covered?

Yes.

See for example the decision in Meuwissen and Francey v Hilton Hotels where a person who was unusually sensitive to cigarette smoke because of asthma was found to have been discriminated against by the failure of a nightclub to provide effective smoke free access.

Note however that a further decision will be required in the circumstances on whether the substance to which a person is sensitive has to be removed.

For example, in the Hilton Hotel case mentioned above, the ultimate finding (Meuwissen and Francey v Hilton Hotels number 2) was that it would be an unjustifiable hardship to ban smoking in the nightclub and that there were no other reasonably achievable means of completely removing smoke. A different result would be likely to apply in a different setting (for example in an office, a shop or a public facility such as a hospital).

Is stuttering a disability under the DDA?

Yes.

The definition of disability in the DDA includes "total or partial loss of the person's bodily or mental functions". Whatever the origins of a particular person's stuttering (neurological, psychological, or more direct physical causes), it is clear that speech is one of the things we do with our bodies and so partial loss of control of speech is covered.

Does the DDA apply to discrimination based on transsexualism?

The only part of the definition of disability that might apply to transsexual people who have not undergone gender reassignment surgery is a "disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour". Some transsexual people have been described as having a disorder of "gender dysphoria", but the Commission does not necessarily accept this labelling, and does not regard transsexual people or any particular transsexual person as necessarily having a psychiatric or psychological disorder. Without evidence of such a disorder, transsexualism will not be regarded as a disability under the DDA. Classification of transsexualism as a disorder by some medical professionals is not in the Commission's view conclusive - noting that homosexuality was long classified as a disorder by the American Psychiatric Association.

A number of elements of the definition of disability could apply to transsexual people who have undergone gender reassignment surgery, including "loss of the person's bodily ... functions", "total or partial loss of a part of the body" or "the ...disfigurement of a part of the person's body".

However, even if a transsexual person was willing to accept any of these labels to make a complaint of discrimination, there would also be an issue of whether the discrimination was because of the physical changes concerned, which might be covered by the DDA, or was rather because of the person's original gender rather than transexuality.

For example, not being permitted to use facilities for women because a person was born as a man would not, in the Commission's view, be covered by the DDA.

The Commission regards other legislation, where available and applicable, as providing more appropriate coverage of discrimination on the basis of transsexualism.

Is unusually short or tall stature a disability under the DDA?

The relevant part of the definition of disability in the DDA refers to "malformation" of a person's body. Shorter or taller than average stature, either within the overall Australian community or compared to people of particular ethnic background, is not in itself a "malformation" and is not in itself a disability under the DDA.

But where a person is discriminated against on the basis of short or tall stature which results from some genetic or hormonal disorder or is otherwise pathological, the DDA will apply.

Is obesity covered by the DDA?

Cases under other anti-discrimination laws have been decided both for and against obesity being a disability.

There is a wide range of "normal" body sizes. It would be difficult to specify where the boundaries of what is "normal" are. In the Commission's view this degree of specification is not necessary under the DDA. The definition of disability under the DDA refers to loss of functioning of a person's body or part of the body. A person whose weight (or lack of it) actually impairs his or her functioning would be covered.

This will be a matter for evidence case by case. If a person is not in fact impaired in functioning but is treated as impaired, this would also be covered since the DDA also applies to imputed disability.

Of course, the more clearly a person is genuinely impaired by his or her weight, the more likely it is that the respondent to a complaint may have a valid defence, in particular in terms of a person's capacity to perform the inherent requirements of employment. On the other side of the coin, people who are within "normal" weight range or are marginally overweight but do not have a disability as most people would understand it are more certain of winning a claim of discrimination if they are in fact subjected to discrimination because of their weight.

This may appear a paradox, if people who have a "real" disability receive less protection in some cases than people who do not. However, the DDA is not benefits-based legislation which treats people as more deserving and confers more rights on them the more serious their disability is. Rather, the more irrational or unreasonable discrimination is, the moe likely it is to be unlawful.

Are drug addiction and substance use covered by the DDA?

Some cases of addiction will properly be regarded as covered by the definition of disability for the purposes of the DDA. This does not, however, bestow any rights in itself, since a person with a disability of any kind still needs to be able to point to discrimination on the basis of that disability; and the concept of discrimination remains limited by provisions including those relating to inherent requirements of the job, unjustifiable hardship and the "reasonableness" element of indirect discrimination. (See for example the discussion in McDougall v Kimberley Clark by the Victorian Civil and Administrative Tribunal : even if the complainant there had been able to show their gambling resulted from a disorder this did not excuse them from reasonable work requirements.)

Various addictive or dependency disorders are recognised in the standard psychiatric diagnostic protocols, the International Classification of Disorders and the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. While the Commission does not take the medical opinion embodied in these texts as decisive of the meaning of "disorder" for the purposes of the DDA or of the applicability of this term in individual circumstances, these opinions are clearly relevant.

Addiction, whether to illegal substances or to legally available substances, is also likely to lead to further impairment of physical and mental capacity in a number of respects, and discrimination on the basis of these impairments would be covered to the same extent as similar impairments from different causes.

Substance use in itself, however, is not within the meaning of disability for the purposes of the Disability Discrimination Act. None of the elements of the definition of disability in section 4 cover an action or behaviour as such. Actions or behaviour are not covered in themselves, although they may provide evidence of a disability, be the basis of an imputation of disability or, in some instances, result from a disability.

Substance use may well result from a disability, for example a psychiatric or psychological disorder, or from a desire or need to mitigate pain associated with a physical disability - but in each of these instances it is the disability which is covered rather than the substance use per se. For example, smokers may often be addicted to nicotine, but this does not mean that restrictions or bans on smoking are discriminatory - for one thing, it is possible to deal with the nicotine addition by wearing patches rather than smoking.

Where substance use results from a disability, discrimination because of the substance use would be considered under indirect rather than direct discrimination provisions: consistent with the decision of the High Court in the Purvis case. This permits consideration of the reasonableness in the circumstances of a requirement not to engage in the substance use concerned.

Substance "use" rather than "abuse" is referred to because some similar issues may arise whether the substance and its use are legal or illicit and whether or not such use is medically harmful. These issues may include, for example, the effect of some prescription drugs in impairing a person's capacity to drive or operate machinery. Similarly, smoking, while not illegal, may involve or result from nicotine addiction. This does not mean however that the DDA creates any right to smoke - as noted in relation to other addictions there is a distinction for the purposes of between the addiction and the behaviour of taking the substance; moreover there are other means of taking nicotine (such as patches) which do not involve smoking.

It is clear that temporary loss of capacity through intoxication was not intended to be covered by the DDA. For this reason the definition of disability in the DDA refers to "disorder" rather than "condition".

These issues were raised in decisions by the Commission and the Federal Court in Marsden v HREOC and Coffs Harbour and District Ex-Servicemen and Women's Memorial Club Ltd . The case was referred back to the Commission to consider on the basis that methadone dependence could constitute a disability, but was settled before a decision was made on whether discrimination on grounds of disability had actually occurred. In Carr v Botany Bay Council the NSW Administrative Decisions Tribunal held that the very similar provisions of the NSW legislation covered methadone dependence. They also pointed out that the fact that a person's disorder is being treated effectively does not take them outside the protection of the NSW legislation. The same point is true under the DDA.

Are people with HIV/AIDS, hepatitis or other communicable diseases covered?

Yes. The DDA definition of disability includes "the presence in the body of organisms causing disease or illness; or the presence in the body of organisms capable of causing disease or illness".

Section 48 of the DDA provides that it is not unlawful to take measures in relation to infectious diseases which are reasonably necessary to protect public health. This is not however a more general exclusion of people with infectious diseases from the protection of the DDA.

Are people with Alzheimer's disease or dementia covered?

Yes. The definition of disability in section 4 of the DDA includes "total or partial loss of the person's bodily or mental functions" and "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour" .

Are people who have, or have had, cancer covered?

Yes. Cancer is included in the definition of disability as a malfunction in part of a person's body. A cancer survivor who is discriminated against because they previously had cancer, or because they are worngly thought to still have cancer, or because they may develop cancer symptoms again in future, is also covered since the DDA includes discrimination based on past, imputed or future disabilties. Problems which have occurred in the U.S. and U.K., where people with cancer have been denied protection against discrimination if they do not have symptoms which substantially impair them in some major life activity, do not apply under the DDA - because Australia avoided using the "limited in a major life activity" test and used a definition of disability better suited to the purposes of a discrimination law.

Are people with chronic pain covered?

Yes. This would falls within one or more of the elements of the definition of disability under the DDA including " … partial loss of the person's bodily or mental functions" or "the malfunction … of a part of the person's body" or "a disorder … that affects a person's thought processes, perception of reality, emotions or judgment".

Are people who wear glasses covered?

Yes - if they are discriminated against. People who wear glasses (like those who use some other assistive device such as a hearing aid) may not be "disabled" in a functional sense when using their assistive devices, but may still experience disability in practice if required to perform some activities without these devices. The protection of the DDA is not reserved to people with "real" or "serious" disabilities, since real and serious discrimination may also occur because of less disabling conditions.

Whether it is unlawful discrimination to require perfect or normal vision uncorrected by glasses or contact lenses will depend on the circumstances (since in some situations it might not be safe or practical to rely on glasses or contact lenses and thus a requirement not to use them might be reasonable or part of the inherent requirements of a job). Note in this respect the decision of the Queensland Anti-Discrimination Commission in Flannery v O'Sullivan finding discrimination in refusing police recruitment to a man who wears contact lenses.

Is there correct language to use about people with a disability?

The DDA does not set out any specific rules to follow in this area and is generally concerned more with what people do than how they talk. You may however be interested in publications from some other organisations: