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This Act may be cited as the Disability Discrimination Act 1992.
Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.
Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.
If a provision of this Act does not commence under subsection (2) within the period of 12 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
The objects of this Act are:
to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
work, accommodation, education, access to premises, clubs and sport; and
the provision of goods, facilities, services and land; and
existing laws; and
the administration of Commonwealth laws and programs; and
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
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.
In this Act, unless the contrary intention appears:
accommodation includes residential or business accommodation.
administrative office means:
an office established by, or an appointment made under, a law of the Commonwealth; and
an office established by, or an appointment made under, a law of a Territory; and
an appointment made by the Governor‑General or a Minister otherwise than under a law of the Commonwealth or of a Territory; and
an appointment as a director of an incorporated company that is a public authority of the Commonwealth;
but does not include:
an office of member of the Assembly, member of the Executive, or Minister within the meaning of the Australian Capital Territory (Self‑Government) Act 1988; or
an office of member of the Legislative Assembly, member of the Council or Minister of the Territory, within the meaning of the Northern Territory (Self‑Government) Act 1978; or
an office or appointment in the Australian Public Service; or
an office of a person employed under the Members of Parliament (Staff) Act 1984.
A person who holds an office mentioned in paragraph (h) or (i) is covered by the definition of Commonwealth employee.
assistance animal has the meaning given by subsection 9(2).
associate, in relation to a person, includes:
a spouse of the person; and
another person who is living with the person on a genuine domestic basis; and
a relative of the person; and
a carer of the person; and
another person who is in a business, sporting or recreational relationship with the person.
carer or assistant has the meaning given by subsection 9(1).
club means an association (whether incorporated or unincorporated) of persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that provides and maintains its facilities, in whole or in part, from the funds of the association.
Commission means the Australian Human Rights Commission.
commission agent means a person who does work for another person as the agent of that other person and who is remunerated, whether in whole or in part, by commission.
Commissioner means the Disability Discrimination Commissioner appointed under section 113.
committee of management, in relation to a club or a registered organisation, means the group or body of persons (however described) that manages the affairs of that club or organisation, as the case may be.
Commonwealth agency means an agency within the meaning of the Privacy Act 1988.
Commonwealth employee means a person who:
is appointed or engaged under the Public Service Act 1999;
holds an administrative office; or
is employed by a public authority of the Commonwealth; or
holds an office or appointment in the Commonwealth Teaching Service or is employed as a temporary employee under the Commonwealth Teaching Service Act 1972; or
is employed under the Australian Security Intelligence Organisation Act 1979 or the Commonwealth Electoral Act 1918; or
is a member of the Defence Force; or
is the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979); or
is a person employed under the Members of Parliament (Staff) Act 1984.
See also section 124 (Commonwealth taken to be employer of Commonwealth employees).
Commonwealth law means:
an Act, or a regulation, rule, by‑law or determination made under an Act; or
an ordinance of a Territory, or a regulation, rule, by‑law or determination made under an ordinance of a Territory; or
an order or award made under a law referred to in paragraph (a) or (b).
Commonwealth program means a program conducted by or on behalf of the Commonwealth Government.
contract worker means a person who does work for another person under a contract between the employer of the first‑mentioned person and that other person.
Convention means the Discrimination (Employment and Occupation) Convention, 1958 adopted by the General Conference of the International Labour Organization on 25 June 1958, a copy of the English text of which is set out in Schedule 1 of the Australian Human Rights Commission Act 1986.
Covenant on Civil and Political Rights means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 of the Australian Human Rights Commission Act 1986.
Department means an Agency within the meaning of the Public Service Act 1999.
Disabilities Convention means the Convention on the Rights of Persons with Disabilities, done at New York on 30 March 2007, as in force for Australia.
The text of the Convention is set out in Australian Treaty Series 2008 No. 12 ([2008] ATS 12). In 2008, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
disability, in relation to a person, means:
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 (including because of a genetic predisposition to that disability); or
is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
disability aid has the meaning given by subsection 9(3).
disability standards has the meaning given by subsection 31(1).
discriminate has the meaning given by sections 5 and 6.
Section 7 (associates) and section 8 (carers, assistants, assistance animals and disability aids) extend the concept of discrimination.
educational authority means a body or person administering an educational institution.
educational institution means a school, college, university or other institution at which education or training is provided.
education provider means:
an educational authority; or
an educational institution; or
an organisation whose purpose is to develop or accredit curricula or training courses used by other education providers referred to in paragraph (a) or (b).
employment includes:
part‑time and temporary employment; and
work under a contract for services; and
work as a Commonwealth employee; and
work as an employee of a State or an instrumentality of a State.
employment agency means any person who, or body that, whether for payment or not, assists persons to find employment or other work or assists employers to find employees or workers, and includes the Commonwealth Employment Service.
enactment has the same meaning as in the Australian Human Rights Commission Act 1986.
exemption means an exemption granted under section 55.
Federal Court means the Federal Court of Australia.
function includes duty.
instrumentality of a State means a body or authority established for a public purpose by a law of a State and includes a local government body.
premises includes:
a structure, building, aircraft, vehicle or vessel; and
a place (whether enclosed or built on or not); and
a part of premises (including premises of a kind referred to in paragraph (a) or (b)).
President means President of the Commission.
principal means:
in relation to a commission agent—a person for whom the commission agent does work as a commission agent; and
in relation to a contract worker—a person for whom the contract worker does work under a contract between the employer of the contract worker and the person.
principal executive, in relation to a Commonwealth agency, has the same meaning as in Part V of the Privacy Act 1988.
proposed enactment has the same meaning as in the Australian Human Rights Commission Act 1986.
public authority of the Commonwealth means:
a body incorporated, whether before or after the commencement of this Act, for a public purpose by a law of the Commonwealth or a law of a Territory, being a body corporate employing staff on its own behalf; or
an authority or body, not being a body corporate, established, whether before or after the commencement of this Act, for a public purpose by, or in accordance with the provisions of, a law of the Commonwealth or a law of a Territory, being an authority or body employing staff on its own behalf; or
an incorporated company over which the Commonwealth, or a body or authority referred to in paragraph (a) or (b), is in a position to exercise control.
reasonable adjustment: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.
registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act.
registered organisation means an organisation registered, or an association recognised, under the Fair Work (Registered Organisations) Act 2009.
relative, in relation to a person, means a person who is related to the first‑mentioned person by blood, marriage, affinity or adoption.
services includes:
services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or
services relating to entertainment, recreation or refreshment; or
services relating to transport or travel; or
services relating to telecommunications; or
services of the kind provided by the members of any profession or trade; or
services of the kind provided by a government, a government authority or a local government body.
State, except in subsections 12(11) and (12), includes the Australian Capital Territory and the Northern Territory.
Territory, except in subsection 12(12) or in paragraph (c) of the definition of administrative office in this subsection, does not include the Australian Capital Territory and the Northern Territory.
unjustifiable hardship has a meaning affected by section 11.
voluntary body means an association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit, but does not include:
a club; or
a body established by a law of the Commonwealth, a State or a Territory; or
an association that provides grants, loans, credit or finance to its members.
For the purposes of this Act, refusing or failing to do an act is taken to be the doing of an act and a reference to an act includes a reference to a refusal or failure to do an act.
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.
This Act applies in relation to a person who has an associate with a disability in the same way as it applies in relation to a person with the disability.
It is unlawful, under section 15, for an employer to discriminate against an employee on the ground of a disability of any of the employee’s associates.
For the purposes of subsection (1), but without limiting that subsection, this Act has effect in relation to a person who has an associate with a disability as if:
each reference to something being done or needed because of a disability were a reference to the thing being done or needed because of the fact that the person has an associate with the disability; and
each other reference to a disability were a reference to the disability of the associate.
This section does not apply to section 53 or 54 (combat duties and peacekeeping services) or subsection 54A(2) or (3) (assistance animals).
The combined effect of sections 7 and 8 is that this Act applies in relation to a person who has an associate who has a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to a person with a disability.
This Act applies in relation to having a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to having a disability.
For the purposes of section 5 (direct discrimination), circumstances are not materially different because of the fact that a person with a disability requires adjustments for the person’s carer, assistant, assistance animal or disability aid (see subsection 5(3)).
For the purposes of subsection (1), but without limiting that subsection, this Act has effect in relation to a person with a disability who has a carer, assistant, assistance animal or disability aid as if:
each reference to something being done or needed because of a disability were a reference to the thing being done or needed because of the fact that the person has the carer, assistant, animal or aid; and
each other reference to a disability were a reference to the carer, assistant, animal or aid.
This section does not apply to section 48 (infectious diseases) or section 54A (exemptions in relation to assistance animals).
The combined effect of sections 7 and 8 is that this Act applies in relation to a person who has an associate who has a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to a person with a disability.
Meanings of carer or assistant, assistance animal and disability aid
For the purposes of this Act, a carer or assistant, in relation to a person with a disability, is one of the following who provides assistance or services to the person because of the disability:
a carer;
an assistant;
an interpreter;
a reader.
For the purposes of this Act, an assistance animal is a dog or other animal:
accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a person with a disability to alleviate the effect of the disability; or
accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or
trained:
to assist a person with a disability to alleviate the effect of the disability; and
to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
For exemptions from Part 2 for discrimination in relation to assistance animals, see section 54A.
For the purposes of this Act, a disability aid, in relation to a person with a disability, is equipment (including a palliative or therapeutic device) that:
is used by the person; and
provides assistance to alleviate the effect of the disability.
Having a carer, assistant, assistance animal or disability aid
The following table has effect:
Having a carer, assistant, assistance animal or disability aid | ||
|---|---|---|
Item | For the purposes of this Act, a person with a disability has … | if the person … |
1 | a carer or assistant | (a) is presently accompanied by the carer or assistant; or (b) was previously accompanied by the carer or assistant; or (c) may be accompanied by the carer or assistant in the future; or (d) is imputed to be accompanied by the carer or assistant. |
2 | an assistance animal or disability aid | (a) is presently accompanied by, or possesses, the animal or aid; or (b) was previously accompanied by, or possessed, the animal or aid; or (c) may be accompanied by, or possess, the animal or aid in the future; or (d) is imputed to be accompanied by, or to possess, the animal or aid. |
If:
an act is done for 2 or more reasons; and
one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);
then, for the purposes of this Act, the act is taken to be done for that reason.
For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
the effect of the disability of any person concerned;
the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
the availability of financial and other assistance to the first person;
any relevant action plans given to the Commission under section 64.
One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.
For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.
In this section:
Australia includes the external Territories.
limited application provisions means the provisions of Divisions 1, 2, 2A and 3 of Part 2 other than sections 20, 29 and 30.
Subject to this section, this Act applies throughout Australia.
This Act has effect in relation to acts done within a Territory.
The limited application provisions have effect as provided in subsection (3) of this section and the following provisions of this section and not otherwise.
Sections 15, 16 and 17 have effect in relation to discrimination against:
Commonwealth employees in connection with their employment as Commonwealth employees; and
persons seeking to become Commonwealth employees.
Section 19 has effect in relation to discrimination by an authority or body in the exercise of a power under a Commonwealth law to confer, renew, extend, revoke or withdraw an authorisation or qualification.
The limited application provisions have effect in relation to acts done by, or on behalf of:
the Commonwealth or the Administration of a Territory; or
a body or authority established for a public purpose by a law of the Commonwealth or a law of a Territory;
in the exercise of a power conferred by a law of the Commonwealth or a law of a Territory.
The limited application provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions:
give effect to the Convention; or
give effect to the Covenant on Civil and Political Rights; or
give effect to the Disabilities Convention; or
give effect to the International Covenant on Economic, Social and Cultural Rights; or
relate to matters external to Australia; or
relate to matters of international concern.
The limited application provisions have effect in relation to discrimination by a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth, or by a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation.
Without limiting the effect of subsection (9), the limited application provisions have effect in relation to discrimination by a trading or financial corporation formed within the limits of the Commonwealth, or by a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation, to the extent that the discrimination takes place in the course of the trading activities of the trading corporation or the financial activities of the financial corporation, as the case may be.
The limited application provisions have effect in relation to discrimination in the course of, or in relation to, the carrying on of the business of:
banking, other than State banking not extending beyond the limits of the State concerned; or
insurance, other than State insurance not extending beyond the limits of the State concerned.
The limited application provisions have effect in relation to discrimination in the course of, or in relation to, trade or commerce:
between Australia and a place outside Australia; or
among the States; or
between a State and a Territory; or
between 2 Territories.
The limited application provisions have effect in relation to discrimination within Australia involving persons or things, or matters arising outside Australia.
The provisions of Division 3 of Part 2 have effect in relation to acts done within Australia involving persons or things, or matters arising outside Australia.