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Guidelines for providers of insurance and superannuation under the Disability Discrimination Act (2016)

Disability Disability Rights
Thursday 15 December, 2016

Updated November 2016

The Commonwealth Disability Discrimination Act 1992 (the DDA) aims, as far as possible, to promote the rights of people with a disability to participate equally in all areas of life. It does this by making it unlawful to discriminate against a person with a disability in a range of areas, subject to certain exceptions.

The DDA generally makes it against the law to discriminate against a person because of disability when providing insurance and superannuation. This covers all forms of general, health and life insurance issued by registered insurers, and includes underwritten and non-underwritten applications and policies issued by insurers.

However, the DDA recognises that some discrimination is necessary in the insurance business. It contains a partial exemption for insurance and superannuation providers in s 46. It also contains a general defence which may apply to providers where not discriminating would cause them unjustifiable hardship.

The Australian Human Rights Commission (the Commission) has the power to make guidelines to assist better understanding of rights and obligations under the DDA. These guidelines are not regulations and are not legally binding. However, they provide the Commission’s views on the interpretation of the DDA and information on how it has been applied in cases in practice. They provide guidance as to when discrimination by insurance and superannuation providers may be lawful, and when it may be unlawful.

These guidelines are intended to:

  • help providers of insurance and superannuation to comply with the DDA, in making decisions in individual cases and in developing broader policies and procedures
  • explain what distinctions or exclusions may be reasonable in offering insurance to people with a disability
  • explain factors that courts may take into account in deciding a complaint about disability discrimination.