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Age and disabilty discrimination – new law

Date : 05 Aug 2009

New laws give greater protection against discrimination under Commonwealth law. The definition of disability has also been broadened to include a person with a genetic predisposition of disease.

These changes follow recommendations from a report that looked into human rights in relation to disability discrimination and equal opportunity law in Australia.

Discrimination due to carer

It is now clear that it is unlawful to discriminate against someone because they have a carer, attendant or aid. This is considered discrimination because of a disability.

Carer could be an assistance animal

It also includes someone who is accompanied by an assistance animal. This could be a guide dog or other animal that has been trained to assist someone with a disability. The animal must meet behaviour and hygiene standards and it may be necessary to prove that the animal has received particular training to assist the person with a disability.

Duty to make reasonable adjustments

The law now makes it clear that there is a duty to make ‘reasonable adjustments’ to accommodate someone with a disability. This duty may include employers and organisations that provide accommodation, goods and services and education.

Changing a situation to avoid discriminating on the basis of someone’s disability will be expected, unless making this judgement would place an unjustifiable burden on the person or organisation.

The definition of discrimination has been broadened to make it clear that reasonable adjustments are expected to be made to avoid discrimination.

Unjustifiable hardship defence

It may not be reasonable to make these adjustments to accommodate someone with a disability if this would cause unjustifiable hardship. This exception has been extended to all forms of unlawful discrimination except harassment and victimisation.

There is a new list of things that have to be considered when deciding whether unjustifiable hardship would result if adjustments were made to accommodate a person with a disability. They include:

the kind of benefit gained and the disadvantage suffered by the person with the disability
the effect of the disability on either party
the financial circumstances, and the estimated cost of the changes that would need to be made to avoid discrimination
whether there is any financial help available
any action plans that have been submitted to the Commission.

It is up to the person who is trying to prove unjustified hardship to prove this.

Workplace exception

It is an exception if the person with a disability would be unable to carry out the particular tasks of the job. Whether or not this exception applies will depend on an evaluation of:

the applicant’s qualifications, relevant experience and training
their work previous work performance history (if they have previously worked for that employer).

Employer must not ask extra for information

It is unlawful to ask for information from someone with a disability that an employer would not ask a person who does not have a disability.

Age discrimination

It is unlawful to discriminate against someone on the basis of their age. This includes both direct and indirect discrimination. Indirect discrimination is when the effect of a process is discriminatory. An example of indirect discrimination could be to put someone through a rigorous fitness test when generally older people may not be expected to compete with younger people.

The important change to age discrimination is that if there is more than one reason for making a decision and one of those is discriminatory, it does not need to shown to be the dominant reason for a decision is discriminatory. This means that if there are two or more reasons for making a decision and any one of the reasons is due to the age of a person or because of a characteristic, which relates generally to people of a particular age then this is discriminatory.

Change of name for Human Rights Commission

Human Rights and Equal Opportunity Commission has become the Australian Human Rights Commission. This nominal change is updated in each Act where the old Commission was referred to.

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Last reviewed: 07 August 2009 Last modified: 15 September 2009