The Court held that a possible future COVID-19 infection imputed to a person because of their unvaccinated status is not a 'disability' within the meaning of s 4 of the Disability Discrimination Act 1992 (Cth). Being unvaccinated is not a disease, illness, malfunction or disorder under s 4(a)-(g), and the imputation limb in s 4(k) must relate to a disability falling within those subsections. The Court further held that even if the claimed disability could engage s 4, the causal nexus required by s 5 was absent because the less favourable treatment was referable to non-compliance with binding public health vaccination directions rather than any disability, and no valid comparator could be constructed where the operative characteristic was vaccination status rather than a recognised disability. Leave under s 46PO(3A)(a) of the AHRC Act was accordingly refused.
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