Disability Discrimination Act 1992: Reasonable Adjustments and Standards

Definition of disability and discrimination

The Disability Discrimination Act 1992 defines disability in a broad manner. Section 4 outlines disability as encompassing a range of conditions, including total or partial loss of bodily or mental functions, loss of body parts, the presence of organisms causing or capable of causing disease, malfunctions, malformations or disfigurements, and disorders affecting thought processes. This definition extends to past, present, and future disabilities, as well as situations where a person is imputed to have a disability. [Anti-discrimination by state in Australia] provides further context on related legislation.

The Act prohibits two main forms of discrimination. Section 5 addresses direct disability discrimination, which occurs when a person with a disability is treated less favourably than a person without a disability in materially similar circumstances. This means that actions or decisions that disadvantage someone based solely on their disability are unlawful.

Section 6 prohibits indirect disability discrimination. This occurs when a requirement or condition is imposed that disadvantages people with a disability and is not reasonable in the circumstances. This type of discrimination can be less obvious but is still unlawful under the DDA.

Reasonable adjustments

The Disability Discrimination Act 1992 places a legal obligation on duty-holders to make reasonable adjustments for people with a disability. This requirement is outlined in sections 5(2) and 6(2) of the Act. Failure to make a reasonable adjustment can constitute discrimination if it results in a person being treated less favourably or disadvantaged. Anti-discrimination by state in Australia provides further context on related legislation.

A ‘reasonable adjustment’ is defined in section 4 of the Act. It refers to an adjustment made to remove a barrier or disadvantage experienced by a person with a disability. However, an adjustment is not considered ‘reasonable’ if it would impose an unjustifiable hardship on the duty-holder.

Determining whether a hardship is unjustifiable is assessed according to section 11. This assessment considers a range of factors, including the benefits and detriments to all relevant persons, the effect of the disability, and the financial circumstances of the duty-holder.

Areas of public life covered

The Disability Discrimination Act 1992 addresses discrimination across various areas of public life. Part 2 Division 1 specifically focuses on employment-related contexts, including partnerships, qualifying bodies, registered organisations and employment agencies. Anti-discrimination by state in Australia provides further information on related legislation.

Beyond employment, the Act covers education, access to premises, goods, services and facilities, accommodation, land, clubs, sport, the administration of Commonwealth laws and programs, and requests for information. These areas are subject to requirements regarding reasonable adjustments to prevent discrimination.

It is important to note that Section 21A allows for exceptions in employment situations where a person cannot perform the inherent requirements of the work, even with reasonable adjustments. Certain organisations, including charities, religious bodies, voluntary bodies and those providing superannuation or insurance based on reasonable actuarial data, may be subject to specific exemptions outlined in sections 35-47.

Disability Standards and enforcement

The Disability Discrimination Act 1992 allows the Attorney-General to create Disability Standards to provide more specific guidance on how the Act applies in particular areas. Currently, Standards in force address education, accessible public transport and access to buildings. Anti-discrimination by state in Australia provides further context on broader anti-discrimination frameworks.

Compliance with a Disability Standard is considered compliance with the Disability Discrimination Act in the specific area covered by that Standard. This means that adhering to the requirements outlined in a Disability Standard helps ensure adherence to the broader obligations of the DDA.

Complaints alleging breaches of the DDA, including those related to Disability Standards, are initially handled by the Australian Human Rights Commission (AHRC) under Part IIB of the AHRC Act 1986. If a complaint is terminated by the AHRC, it may be taken to the Federal Court or Federal Circuit and Family Court. The court has the power to order remedies such as damages, reinstatement, declarations and injunctions.