Initial self-help options

An initial option is to send a written complaint to the discriminating party. As part of the complaint request a reply, informing them that if they do not reply within 14 to 21 days you will take the matter further. 

This letter should include as much detail as possible: 

• An explanation of your disability 
• Date/s the event occurred 
• Details of what has happened to you 
• How you were affected by the discriminatory event
• Any actions you took to bring the event to the discriminator’s attention

Other options available to you

• Take legal action in a different area of law, such as industrial relations law, consumer law, contract law or the law of negligence
• Make a complaint through the internal grievance procedures of the organisation or company that is discriminating against you
• Make a complaint to an independent dispute-resolution body that is located in the area in which you have experienced discrimination 
• Make a complaint to a professional body that regulates the work of the person who is discriminating against you
• Have the matter dealt with through an independent person, such as a private mediator

Decide on the outcome are you seeking

Before you decide to take legal action it is important to think about:

• What you want to get out of it 
• Whether the desired outcome is available 
• How long the process might take
• The costs involved 

Taking action under the law can achieve the following general outcomes: 

• Changes to policy or practice
• Reversal of discriminatory action, for example job reinstatement or promotion
• An apology, either publicly or privately
• Compensation paid to you, for the loss or harm you have experienced because of discrimination

Be prepared

Taking legal action can be stressful. You may have to communicate unpleasant events many times over and in great detail.

Consider how this sort of stress might impact on your life and what networks you can seek support from.

A final consideration

Many of these outcomes are achieved through conciliation or negotiation, if the respondent agrees to do what you ask. If the matter goes to a court or tribunal, the remedies and orders made will be more limited. 

They may not agree to the outcome you seek or make the orders you want. It is important to have realistic expectations of what type of orders may be made and amount of damages. You can only recover what you have lost.

Learn more about the process for making a complaint.

The Disability Discrimination Act (DDA) and Anti-Discrimination Act (ADA) use different definitions of disability.

Anti-Discrimination Act (ADA) (NSW 1977) defines a disability as:


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

Disability Discrimination Act (DDA) (Commonwealth 1992) defines a disability as:


• Total or partial loss of the person’s bodily or mental functions; or
• Total or partial loss of a part of the body; or
• 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; or
• The malfunction, malformation or disfigurement of a part of the person’s body; or
• A disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
• A disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment, or that results in disturbed behaviour, and includes a disability that:

• Presently exists; or
• Previously existed but no longer exists; or
• May exist in the future; or
• Is imputed to a person


The DDA and ADA also cover:

Future disability: A condition which runs in the family which you may develop in the future.

Imputed disability: Something someone believes another person has, whether or not they do. For example, someone may believe a gay man has HIV/AIDS.

Temporary disability: A disability that exists for a short period of time and isn’t permanent. Temporary disability may also be treated as a past disability if adverse treatment continues after the disability ceases.

Associates: If someone associated with a person with a disability is treated differently because of their association, the treatment of the ‘associate’ may be unlawful.

What is disability discrimination?

Two laws make disability discrimination unlawful in NSW:

Disability Discrimination Act 1992 (DDA)
A Federal Act that applies everywhere in Australia. It is administered by the Australian Human Rights Commission (AHRC), formerly known as the Human Rights & Equal Opportunity Commission (HREOC).

This Act is applied to:


• Access to premises
• Accommodation
• Clubs and association
• Commonweath laws and programs
• Education
• Employment and related areas
• Goods, services and facilities
• Land
• Sport


See more information about these areas below.

Anti-Discrimination Act 1977 (ADA)
The state legislation, similar to the DDA which is administered by the Anti-Discrimination Board (ADB).

This Act applies to:

• Accommodation
• Employment and related areas
• Education (excluding private schools)
• Goods, services and facilities
• Local government
• Registered clubs

See more information about these areas below.

The DDA and ADA also cover working arrangements for:


• Commission agents
• Contract workers
• Partnerships
• Union membership
• Employment agencies
• Qualifying bodies

Accommodation

This includes residential and business accommodation and covers:


• Applications for accommodation
• Terms on which accommodation is offered
• Evictions

Access to premises


This includes access to premises used by the public, such as:


• Libraries
• Government offices
• Hospitals
• Restaurants
• Shops

Clubs and associations


This includes:


• Applications to join a club or association
• Terms of membership
• Access to member’s benefits
• Expulsion from membership

Commonwealth laws and programs


It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or program to discriminate against a person because of their disability.

Education 


This includes:


• Application for enrolment
• Treatment as a student
• Access to facilities
• Expulsion
• Educational facilities provided 

• This does not apply to schools, colleges or universities, which are exclusively for students with disabilities. The ADA does not apply to private educational authorities.

Employment and work

An employer cannot discriminate against: 


• Applicants for employment
• Terms and conditions of employment
• Promotion
• Training
• Access to workplace benefits
• Dismissal

Goods, services and facilities


This includes all types of goods, services and facilities, such as:

• Shopping
• Transport
• Insurance
• Entertainment
• Recreation
• Obtaining services from anyone, such as doctors or banks

Land

It is unlawful for a person to refuse or fail to dispose of an interest in land.


NSW Local Government


It is unlawful for a member of council to discriminate when acting in official capacity including:


• Being a councillor
• Council services
• Amenities
• By-laws
• Programs

Registered clubs


This includes:


• Applications to join a club
• Terms of membership
• Access to member’s benefits
• Expulsion from membership 


The ADA only covers registered clubs and not associations generally. A registered club is a club which meets the requirements of the Registered Clubs Act in NSW. 



Sport


It is unlawful to exclude a person from sporting activities. However, there are some specific exemptions for sport where the person with the disability is not reasonably capable of performing the actions required in relation to the sporting activity. 


What is lawful and unlawful?

Direct discrimination


Direct discrimination is when someone treats you less favourably, or proposes to treat you less favourably, than they would treat someone else who does not have a disability, in similar circumstances.

For example, charging a person more to use their facilities because they use a wheelchair.

The people you are comparing yourself with are called the ‘comparators’. When complaining about direct disability discrimination, you need to be clear about who your comparators are. That is, whom you are saying receives better treatment than you.

Indirect discrimination


Indirect discrimination is when you are expected to meet some sort of criteria that you cannot meet because of your disability, and people without your disability would probably be able to meet it.

For indirect discrimination to be unlawful, the expectation or criteria that is placed on you has to be something that is unreasonable in the circumstances. For example, making the only entrance to premises by stairs, which means the premises are inaccessible to people with mobility disability. 

Aiding and abetting


Under the Disability Discrimination Act (DDA) and Anti Discrimination Act (ADA), it is unlawful for another person to cause, instruct, induce, aid, or permit another person to commit an act that is unlawful. 


Discriminatory questions


Under the DDA, it is generally unlawful for someone to ask you to give information that may be used to discriminate against you on the basis of your disability.

An example of a discriminatory question is ‘Does any member of your family have any one of the following medical conditions?’ It is not unlawful to expect you to provide this information if people who do not have disabilities are also expected to provide it in similar circumstances.

It is also not unlawful to ask you for information about your disability before or after you have been offered a job if your disability is linked to the tasks of the position. In addition, it’s not unlawful for someone to ask you about ‘adjustments’ that you need to ensure that you are not treated less favourably because of your disability.


Harassment


Harassment on the grounds of disability is unlawful under the DDA, but only if it happens in employment, in education or in the provision of goods and services. There is sometimes an overlap between discrimination and harassment. 


Vicarious liability


Under the DDA and ADA, where an employee or agent has engaged in unlawful discrimination, that person’s employer or principal may also be liable for unlawful conduct if they failed to take all reasonable steps to prevent the unlawful discrimination from occurring.

Victimisation


Victimisation occurs when one person subjects or threatens to subject someone else to some form of detriment or harm. Under the DDA and ADA, it is unlawful to victimise a person because they have taken action under anti-discrimination law.

Vilification


Vilification is any public act that incites hatred towards, serious contempt for, or severe ridicule of someone on the grounds that they are HIV/AIDS infected, or thought to be HIV/AIDS infected. Under the ADA, it is unlawful to vilify a person because of their HIV/AIDS status.

Lawful discrimination definitions

Charities


The DDA and ADA do not apply to certain charities which confer benefits for a particular group.


Compliance with other laws


Under the ADA, where an employer, service provider or landlord must comply with another law, and the obligations imposed by the other law make is impossible to avoid discrimination, then the discrimination will not be unlawful.

Court orders


It is lawful to discriminate if it is necessary to comply with a decision of:



• The commission 

• A court order 

• An award made by an industrial court of tribunal 

• A statutory authority 


Inherent requirements of the job


When complaining about disability discrimination in relation to employment you need to show that your disability does not stop you from completing the essential features of the job. 



This does not mean you have to be able to meet all the requirements of the job, only those that are essential to the position. This is known as meeting the ‘inherent requirements’ of the job. For example, it is probably an inherent requirement of a painter’s job to be able to climb ladders and carry paint tins. 



In order to meet the requirements of the job, you might need some adjustments to be made. Provided the adjustments will not impose an ‘unjustifiable hardship’ on the employer, the employer is not allowed to discriminate against you simply because you need adjustments. 



Insurance and superannuation


It is lawful to discriminate in the provision of insurance if it is based on actuarial or statistical data that is reasonable to rely on. 



Migration


Discriminatory provisions of the Migration Act 1958 are exempt from the DDA. 



Peacekeeping and combat duties


Employment in the Defence Force in combat or peacekeeping roles is exempt from the DDA. 



Pensions


Discriminatory provisions of various Federal laws concerning social security, pensions and allowances are exempt from the DDA. 


Public health (DDA)


It is lawful to discriminate against a person with an infectious disease if the discrimination is ‘reasonably necessary’ in order to protect public health. 



Public health (ADA)


It is lawful to discriminate against someone if it is necessary to do so for public health and safety.



Special exemptions


The Commission or the Minister has power to grant an exemption under the Act. 



Unjustifiable hardship


If the employer’s ability to make adjustments or a service provider’s ability to provide services will result in an unjustifiable hardship, then it may be lawful for the employer or service provider to discriminate against a person with a disability. 



The factors that need to be taken into account to determine whether there will be unjustifiable hardship include:


• Benefits the adjustment will have for other people who may be affected
• Disadvantages the adjustment will have for other people who may be affected
• Effect of the disability on the particular person, and what this means in terms of the adjustments they need
• Costs of making the adjustment

Current projects

The NSW DDLC is currently working on the following policy and law reform projects:

• Submission to the Inquiry into the 2008 Local Government Elections Terms of Reference
• Submission to the National Human Rights Consultation – Terms of Reference 

Have your say

If you would like to make suggestions on what you would like NSW DDLC to include in our current policy and law reform projects, please email info@ddlnsw.org.au or post your comments to the NSW Disability Discrimination Legal Centre, PO Box 989 Strawberry Hills NSW 2012.

Unfortunately we’re not able to guarantee that your suggestions will be incorporated into our submissions.

There were 82 signatories to the Convention, 44 signatories to the Optional Protocol, and 1 ratification of the Convention. 

This is the highest number of signatories in history to a UN Convention on its opening day which marks a shift in attitudes and approaches to persons with disability.

The Convention is intended as a human rights instrument with an explicit and social development dimension. It adopts a broad categorization of persons with disability and reaffirms that all persons with all types of disability must enjoy all human rights and fundamental freedoms. 

It clarifies and qualifies how all categories of rights apply to persons with disability and identifies areas where adaptations have to be made for persons with disability to effectively exercise their rights, in areas where their rights have been violated and where protection of rights must be reinforced.

The Australia Government ratified the Convention in July 2008 and it is being applied throughout the disability sector in Australia.

For more information visit the Australian Human Rights Commission website. 

The factsheet titles are:

• Do I have to disclose my disability to my employer?
• Am I entitled to adjustments in the workplace by reason of my disability?
• What are the ‘inherent requirements’ of a job?
• Do I bring my complaint to the Anti-Discrimination Board under the Anti-Discrimination Act 1977 (NSW) or to the Australian Human Rights Commission under the Disability Discrimination Act 1992 (Cth)?
• Summary Table of complaints that can be made under the 2 Discrimination Acts.

Thanks goes to Mallesons Stephen Jaques for their assistance in the developing the factsheets.

]]> http://www.ddlcnsw.org.au/2009/faqs-factsheets-now-online/feed/ 0 http://www.ddlcnsw.org.au/2009/recent-casework/ http://www.ddlcnsw.org.au/2009/recent-casework/#comments Thu, 19 Mar 2009 10:28:10 +0000 admin http://fresh.fcp-aussie.com/?p=62 Discrimination in the Provision of Goods and Services—Auslan Interpreter

Our client, who has a hearing impairment, wished to undertake a course at a local registered training organisation, which offered fully funded courses by a government department. In order for our client to attend the course though he needed an Auslan interpreter and this would cost an additional $5000. Our client made a complaint to the Australian Human Rights Commission against the government department that administered the course as he felt it was unfair that the department would not give him extra funding to pay for an interpreter.

At conciliation the parties agreed to settle on the basis that the government department would provide extra funding for an Auslan interpreter and the registered training organisation would assist our client by providing a flexible learning environment that would enable him to complete some of the course by reading materials – rather than by class work. The department also agreed to meet with a leading disability advocacy organisation to discuss ways in which their initiatives can be made available to hearing impaired people on an equal basis.

Discrimination in the workplace

DDLC acted for an indigenous client who worked for a local government organisation. Our client was constantly subjected to comments about his race and about his work related injuries, which proved too difficult to deal with and in the end he resigned.

We appeared in a conciliation, the result of which saw the organisation put in place Indigenous Traineeships and also discrimination training.

]]> http://www.ddlcnsw.org.au/2009/recent-casework/feed/ 0 http://www.ddlcnsw.org.au/2009/2009-staff-planning-day/ http://www.ddlcnsw.org.au/2009/2009-staff-planning-day/#comments Tue, 17 Mar 2009 10:38:05 +0000 admin http://fresh.fcp-aussie.com/?p=65 On 21 January 2009, DDLC staff took time out to get together and plan on how to improve service delivery for our clients.

At the end of the day, we came up with a list of ‘mini-projects’ that we are all responsible for which contributes to an overall improved service delivery.

Thanks goes to Mallesons Stephen Jaques for giving us a room and providing us with sustenance on this most successful day.

Of course, as a reader and/or client, your feedback is most welcome as it may be something that we haven’t thought of!

]]> http://www.ddlcnsw.org.au/2009/2009-staff-planning-day/feed/ 0 http://www.ddlcnsw.org.au/2009/companion-card/ http://www.ddlcnsw.org.au/2009/companion-card/#comments Tue, 10 Mar 2009 10:40:26 +0000 admin http://fresh.fcp-aussie.com/?p=68 The Companion Card was recently introduced in NSW with the aim to reduce discrimination against people with significant and lifelong disabilities who require a companion to travel with them on public transport or participate in recreational activities.

The card grants free admission or fare for the person’s companion in participating businesses. For more information or to apply for the card, call 1800 893 044 or visit www.nds.org.au/nsw/companioncard.htm.

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