Disability Discrimination Act
The Federal Disability Discrimination Act (DDA) 1992 aims to protect people with a disability from discrimination. Each state and territory of Australia also has complimentary legislation such as state Anti Discrimination/Equal Opportunity Acts that prohibit discriminatory treatment of people with disabilities.
The DDA and each of the state acts aim to protect people with disabilities from discriminatory treatment in a range of areas including employment, education and access to services, facilities and public areas.
While this resource focuses on the obligations under the Federal DDA, the provisions of state legislation are very similar. For further information about State legislation refer to the 'Resources' section of this document.
Disability Discrimination Act (DDA) 1992
The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and (ii) the provision of goods, facilities, services and land; and (iii) existing laws; and (iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.(1)"
What is disability under the Legislation?
The definition of disability under the Act is very broad to encompass physical, sensory, mental and intellectual disability.
"disability, in relation to a person, means:
(a) total or partial loss of the person's bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person's body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) 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:
(h) presently exists; or (i) previously existed but no longer exists; or (j) may exist in the future; or (k) is imputed to a person (2)"
What is a disability discrimination under the Act
The DDA covers discrimination and harassment on the grounds of disability. Discrimination includes direct forms of discrimination and indirect discrimination.
Direct Discrimination is where someone receives less favourable treatment than a person without a disability in similar circumstances.
"Jacinta was denied an interview for a position for which she applied, even though she demonstrated in her application and resume that she could meet the selection criteria. She was denied the interview because the selection panel decided her disability may result in her needing more time off work, than her peers."
This is a form of direct discrimination, which the legislation aims to address. Nobody should be denied an interview on the basis of a disability. The assumptions made by the panel in relation to Jacinta's application, were based on preconceived beliefs about people with a disability. Jacinta was not given the opportunity to demonstrate, at interview, her capacity to fulfil the requirements of the job in the same way as other applicants.
Indirect Discrimination is where a policy, practice or requirement is applied equally but has a discriminatory outcome for those with a disability.
The policy, practice or requirement may appear fair and neutral but the effect is that the person with a disability is unable to meet it compared with someone without a disability.
"Hari is unable to participate in a field trip that has been planned for his course because of his disability. The course coordinator has stated that anyone who can't attend the first field trip, can attend later and that Hari also has this option. In Hari's case he can't participate at any time and so he will fail this unit."
This is indirect discrimination because even though Hari is offered the same opportunity as his peers to attend the field trip now or later, he is not able to attend at all. If Hari was offered a reasonable accommodation in his course, such as an alternative assessment, he may successfully complete the unit.
Discrimination in education
An educational institution cannot discriminate against a person on the ground of the person's disability or a disability of any of the person's associates:
"by refusing or failing to accept the person's application for admission as a student; or in the terms or conditions on which it is prepared to admit the person as a student."
It is also unlawful to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates:
- "by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
- by expelling the student; or
- by subjecting the student to any other detriment.(3)"
The Disability Discrimination Act is applicable to all students with a disability, including international students, part time students and full time students.
It includes all processes related to undertaking study including:
- applying for admission to a course or institution
- enrolling in a course
- while studying
- examinations and assessments
- participation in student activities
What are 'reasonable adjustments' or 'education related adjustments' in education?
The Act requires educational institutions to put in place actions to help ensure equal opportunity for people with a disability, commonly referred to as "reasonable adjustments" or "education related adjustments".
The legislation does not specify the types of adjustments required to remove discrimination. Each case needs to be considered in its own circumstances and previous case law.
Some examples of education related adjustments in the educational environment include:
- changes to the physical environment, such as modified physical spaces or provision of equipment
- modifying communication systems or information provision
- providing course materials in alternative formats
- provision of interpreters, readers etc
- alternative assessments and/or examinations
- provision of a private room for undertaking exams
What are the academic requirements of a course
The academic requirements of a course are determined by identifying academic achievement reasonably required in the course, including skills and abilities required and whether the academic requirements can be met in another way by making education related adjustments.
"Joshua is doing his primary teaching course, but because of his disability he is unable to write in freehand on the board. However, through negotiation he has been able to use an overhead projector and other assistive technology to overcome this issue."
The academic requirement of the course is not to write in freehand, but to have the material available to the students in an accessible manner. This is achieved with the overhead projector and other technologies.
Further information may be obtained by referring to the Disability Standards for Education website.
What is 'unjustifiable hardship'?
For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and (b) the effect of the disability of a person concerned; and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and (d) in the case of the provision of services, or the making available of facilities-an action plan given to the Commission under section 64 (8).
An employer is responsible for thoroughly assessing the applicant's request for work related adjustments before claiming 'unjustifiable hardship'. This includes assessing:
- direct costs
- any offsetting tax, subsidy or other financial benefits available in relation to the adjustment or in relation to the employment of the person concerned
- indirect costs and/or benefits, including in relation to productivity of the position concerned, other employees and the enterprise
- any increase or decrease in sales, revenue or effectiveness of customer service
- how far an adjustment represents any additional cost above the cost of equipment or facilities which are or would be provided to an employee similarly situated who does not have a disability
- how far an adjustment is required in any case by other applicable laws, standards or agreements
- relevant skills, abilities, training and experience of a person seeking the adjustment(9) .
Disability Action Plans
A Disability Action Plan is a strategy that is developed by an organisation to identify issues and develop strategies to eliminate discriminatory practices against people with disabilities.
Any 'service provider' may develop action Plans. This term includes anyone who, or any institution which, provides goods or services or makes facilities available, with or without cost. It applies to:
- educational institutions;
- commonwealth and state government departments and agencies;
- local government;
- organisations and businesses in the public and private sectors; and
An Action Plan must include certain components - these are listed in section 61 of the DDA (see Appendix 4):
- a review of current activities;
- devising of policies and programs;
- goals and targets;
- evaluation strategies;
- allocation of responsibility; and
- communication of policies and programs(6).
Action Plans can be lodged with the Australian Human Rights Commission (AHRC) if these particular components are included in the Action Plan.
A number of Universities and TAFE Institutes across Australia have developed, or are in the process of developing, Disability Action Plans. Action Plans are freely available, either through the education institution or the Australian Human Rights Commission (AHRC) website.
If a Disability Action Plan has been successfully lodged with AHRC, this will be taken in to consideration if a complaint has been made against the institution. However, the Plan has to be seen to be implemented within the institution before favourable consideration will be given.
Disability Standards for Education
Under the Disability Discrimination Act (DDA), the Attorney-General may make Disability Standards to specify rights and responsibilities about equal access and opportunity for people with a disability, in more detail and with more certainty than the DDA itself provides. Standards can be made in the areas of:
- public transport services
- access to premises
- accommodation and the
- administration of Commonwealth laws and programs(7).
A set of Education Standards have been developed that specifies how education and training are to be made accessible to students with disabilities. They cover the following areas:
- curriculum development, accreditation and delivery
- student support services and
- elimination of harassment and victimisation.
The development of the Standards for Education is intended to clarify how the DDA should apply to education, both for a student with a disability and the organisation. For further information on the Disability Standards for Education refer to the Australian Human Rights Commission website.
Discrimination in employment
The Disability Discrimination Act is applicable to employees, contract staff, commission agents, agency workers and partnerships of three or more people.
It includes all processes related to employment including:
- recruitment, incorporating advertising, providing information about jobs, application forms, interview arrangements, selection tests or examinations etc)
- staff selection
- conditions of employment (salary, duties, leave entitlements, superannuation etc)
- opportunities for training and promotion
- trade or Professional Registration
- membership of unions or professional associations
What are reasonable adjustments or work related adjustments?
The Act requires employers and to put in place actions to help ensure equal opportunity for people with a disability, commonly referred to as "reasonable adjustments" or "work related adjustments".
The legislation does not specify the types of adjustments required to remove discrimination. Each case needs to be considered in its own circumstances.
Some examples of reasonable adjustments and work related adjustments include:
- changes to the physical environment, such as modified work stations
- provision of equipment
- modifying communication systems or information provision
- provision of interpreters
- flexibility around hours of work
What are the inherent requirements of a job or course?
The inherent requirements of a job are determined by identifying the work reasonably required in the job, including skills and abilities required and whether the inherent requirements can be met in another way by making reasonable adjustments.
"Juanita's disability means that she finds it difficult to work in a room with artificial lighting for more than a couple of hours at a time. Her work involves machine operating which cannot be relocated to a lighter environment. Juanita's employer has agreed to her having shorter shifts at this work and taking on other tasks in between to ensure she is able to maintain her position."
Although the inherent requirements involve machine operation, the inherent requirement does not involve working on machines for long periods of time each day and the accommodation put in place by the employer ensures Juanita is able to continue her employment.