Anti-Discrimination Act 1977 No 48
Current version for 20 May 2014 to date (accessed 21 November 2014 at 23:05)
Part 4A

Part 4A Discrimination on the ground of disability

Division 1 General

49A   Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability:
(a)  that a person has, or
(b)  that a person is thought to have (whether or not the person in fact has the disability), or
(c)  that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
(d)  that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

49B   What constitutes discrimination on the ground of disability

(1)  A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator:
(a)  on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b)  requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2)  For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
(3)  For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.
(3A)  For the purposes of, but without limiting, this section, the fact that a person who has a disability:
(a)  is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or
(b)  is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,
is taken to be a characteristic that appertains generally to persons who have that disability.
(4)  A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

49C   What constitutes unjustifiable hardship

In determining what constitutes unjustifiable hardship for the purposes of this Part, 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.

Division 2 Discrimination in work

49D   Discrimination against applicants and employees

(1)  It is unlawful for an employer to discriminate against a person on the ground of disability:
(a)  in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b)  in determining who should be offered employment, or
(c)  in the terms on which the employer offers employment.
(2)  It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a)  in the terms or conditions of employment which the employer affords the employee, or
(b)  by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c)  by dismissing the employee, or
(d)  by subjecting the employee to any other detriment.
(3)  Subsections (1) and (2) do not apply to employment:
(a)  for the purposes of a private household, or
(b)  where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5, or
(c)  by a private educational authority.
(4)  Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a)  would be unable to carry out the inherent requirements of the particular employment, or
(b)  would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
(5)  For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

49E   Discrimination against commission agents

(1)  It is unlawful for a principal to discriminate against a person on the ground of disability:
(a)  in the arrangements the principal makes for the purpose of determining who should be engaged as a commission agent, or
(b)  in determining who should be engaged as a commission agent, or
(c)  in the terms on which the principal engages the person as a commission agent.
(2)  It is unlawful for a principal to discriminate against a commission agent on the ground of disability:
(a)  in the terms or conditions which the principal affords him or her as a commission agent, or
(b)  by denying him or her access, or limiting his or her access, to opportunities for promotion, transfer or training, or to any other benefits associated with his or her position as a commission agent, or
(c)  by terminating his or her engagement, or
(d)  by subjecting him or her to any other detriment.
(3)  Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by a principal against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to engagement as a commission agent and, if the person is already engaged by the principal as a commission agent, the person’s performance as a commission agent, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a)  would be unable to carry out the inherent requirements of a commission agent, or
(b)  would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the principal.

49F   Discrimination against contract workers

(1)  It is unlawful for a principal to discriminate against a contract worker on the ground of disability:
(a)  in the terms on which the principal allows him or her to work, or
(b)  by not allowing him or her to work or continue to work, or
(c)  by denying him or her access, or limiting his or her access, to any benefit associated with the work in respect of which the contract with his or her employer is made, or
(d)  by subjecting him or her to any other detriment.
(2)  Nothing in subsection (1) (b) renders unlawful discrimination by a principal against a contract worker on the ground of the contract worker’s disability if taking into account the contract worker’s past training, qualifications and experience relevant to working as a contract worker and, if the person is already working for the principal as a contract worker, the contract worker’s performance as a contract worker, and all other relevant factors that it is reasonable to take into account, the contract worker because of his or her disability:
(a)  would be unable to carry out the inherent requirements of a contract worker, or
(b)  would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the principal.

49G   Partnerships

(1)  It is unlawful for a firm consisting of 6 or more partners, or for any one or more of 6 or more persons proposing to form themselves into a partnership, to discriminate against a person on the ground of disability:
(a)  in the arrangements made for the purpose of determining who should be offered a position as partner in the firm, or
(b)  in determining who should be offered a position as partner in the firm, or
(c)  in the terms on which the person is offered a position as partner in the firm.
(2)  It is unlawful for a firm consisting of 6 or more partners to discriminate against a partner on the ground of disability:
(a)  by denying the partner access, or limiting the partner’s access, to any benefit arising from membership of the firm, or
(b)  by expelling the partner from the firm, or
(c)  by subjecting the partner to any other detriment.
(3)  Nothing in subsection (1) (b) or (2) (b) renders unlawful discrimination by a person against another person on the ground of the other person’s disability if taking into account the other person’s past training, qualifications and experience relevant to the proposed partnership or the partnership and, if the other person is already a partner, the other person’s performance as a partner, and all other relevant factors that it is reasonable to take into account, the other person because of his or her disability:
(a)  would be unable to carry out the inherent requirements of a partner in the proposed partnership or the partnership, or
(b)  would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the partnership.

49H   Discrimination by local government councillors

It is unlawful for any member or members of a council of a local government area when acting (whether alone or together) in the course of his, her or their official functions to discriminate against another member of the council on the ground of disability.

49I   Industrial organisations

(1)  It is unlawful for an industrial organisation to discriminate against a person who is not a member of the industrial organisation on the ground of disability:
(a)  by refusing or failing to accept his or her application for membership, or
(b)  in the terms on which it is prepared to admit him or her to membership.
(2)  It is unlawful for an industrial organisation to discriminate against a person who is a member of the industrial organisation on the ground of disability:
(a)  by denying him or her access, or limiting his or her access, to any benefit provided by the industrial organisation, or
(b)  by depriving him or her of membership or varying the terms of his or her membership, or
(c)  by subjecting him or her to any other detriment.
(3)  Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot be provided in that manner by the industrial organisation without unjustifiable hardship to it.

49J   Qualifying bodies

(1)  It is unlawful for an authority or body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of disability:
(a)  by refusing or failing to confer, renew or extend the authorisation or qualification, or
(b)  in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or
(c)  by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.
(2)  Nothing in subsection (1) (a) or (c) renders unlawful discrimination by an authority or body against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular profession, trade or occupation and, if the person is already a member of the profession, carrying on the trade or engaged in the occupation, the person’s performance in the profession trade or occupation, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability would be unable to carry out the inherent requirements of the profession, trade or occupation.

49K   Employment agencies

(1)  It is unlawful for an employment agency to discriminate against a person on the ground of disability:
(a)  by refusing to provide him or her with any of its services, or
(b)  in the terms on which it offers to provide him or her with any of its services, or
(c)  in the manner in which it provides him or her with any of its services.
(2)  Nothing in this section renders unlawful discrimination by an employment agency against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the work sought, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability would be unable to carry out the inherent requirements of the work sought.

Division 3 Discrimination in other areas

49L   Education

(1)  It is unlawful for an educational authority to discriminate against a person on the ground of disability:
(a)  by refusing or failing to accept his or her application for admission as a student, or
(b)  in the terms on which it is prepared to admit him or her as a student.
(2)  It is unlawful for an educational authority to discriminate against a student on the ground of disability:
(a)  by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or
(b)  by expelling him or her, or
(c)  by subjecting him or her to any other detriment.
(3)  Nothing in this section applies to or in respect of:
(a)  a private educational authority, or
(b)  a refusal or failure to accept a person’s application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the applicant.
(4)  Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.
(5)  Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.

49LA   (Repealed)

49M   Provision of goods and services

(1)  It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:
(a)  by refusing to provide the person with those goods or services, or
(b)  in the terms on which he or she provides the person with those goods or services.
(2)  Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

49N   Accommodation

(1)  It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability:
(a)  by refusing the person’s application for accommodation, or
(b)  in the terms on which the person is offered accommodation, or
(c)  by deferring the person’s application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.
(2)  It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability:
(a)  by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or
(b)  by evicting the person, or
(c)  by subjecting the person to any other detriment.
(3)  Nothing in this section applies to or in respect of the provision of accommodation in premises if:
(a)  the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and
(b)  the accommodation provided in those premises is for no more than 6 persons.
(4)  Nothing in this section applies to the provision of accommodation in premises where special services or facilities would be required by the person with a disability and the provision of such special services or facilities would impose unjustifiable hardship on the person providing or proposing to provide the accommodation whether as principal or agent.
(5)  Nothing in this section applies to the provision of accommodation to persons who have a particular disability by a charitable body or other body that does not distribute its profits to members.
(6)  Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the person who provides the accommodation.

49O   Registered clubs

(1)  It is unlawful for a registered club to discriminate against a person who is not a member of the registered club on the ground of disability:
(a)  by refusing or failing to accept the person’s application for membership, or
(b)  in the terms on which it is prepared to admit the person to membership.
(2)  It is unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of disability:
(a)  by denying the person access, or limiting the person’s access, to any benefit provided by the registered club, or
(b)  by depriving the person of membership or varying the terms of the person’s membership, or
(c)  by subjecting the person to any other detriment.
(3)  Nothing in subsection (1) or (2) applies to or in respect of a registered club if the principal object of the registered club is to provide benefits only for persons who have a particular disability specified in the principal object.
(4)  In determining whether the principal object of a registered club is as referred to in subsection (3), regard is to be had to:
(a)  the essential character of the registered club, and
(b)  the extent to which the affairs of the registered club are so conducted that the persons primarily enjoying the benefits of membership are persons who have the particular disability specified in the principal object, and
(c)  any other relevant circumstance.
(5)  Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the registered club.

Division 4 Exceptions to Part 4A

49P   Public health

Nothing in this Part renders unlawful discrimination against a person on the ground of disability if the disability concerned is an infectious disease and the discrimination is reasonably necessary to protect public health.

49PA   Persons addicted to prohibited drugs

(1)  This section applies to the provisions of Division 2 (Discrimination in work), other than sections 49H, 49I and 49J.
(2)  Nothing in those provisions renders unlawful discrimination against a person on the ground of disability if:
(a)  the disability relates to the person’s addiction to a prohibited drug, and
(b)  the person is actually addicted to a prohibited drug at the time of the discrimination.
(3)  However, nothing in this section makes it lawful to discriminate against a person on the ground of the person having hepatitis C, HIV infection or any medical condition other than addiction to a prohibited drug.
(4)  In this section:

prohibited drug means a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, but does not include:

(a)  methadone or buprenorphine, or
(b)  any other drug that is declared by the regulations not to be a prohibited drug for the purposes of this section.

49Q   Superannuation, insurance

Nothing in this Part renders unlawful discrimination against a person on the ground of disability in the terms or conditions appertaining to a superannuation or provident fund or scheme or with respect to the terms on which an annuity, a life assurance policy, an accident or insurance policy or other policy of insurance is offered or may be obtained, where:
(a)  the terms or conditions:
(i)  are based upon actuarial or statistical data on which it is reasonable to rely, and
(ii)  are reasonable having regard to the data and any other relevant factors, or
(b)  in a case where no such actuarial or statistical data is available and cannot reasonably be obtained—the terms or conditions are reasonable having regard to any other relevant factors,
and the source on which any data referred to in paragraph (a) is based is disclosed to the Tribunal, where the Tribunal so requires, and any other relevant factors to which regard has been had as referred to in paragraph (a) or (b) are disclosed to the Tribunal, where the Tribunal so requires.

49R   Sport

Nothing in this Part renders unlawful discrimination against a person on the ground of disability, being discrimination consisting of the exclusion of the person from a sporting activity:
(a)  if the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity, or
(b)  if the persons who participate or are to participate in the sporting activity are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other, or
(c)  if the sporting activity is conducted only for persons who have a particular disability and the person does not have that disability.
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