When Australia signed the Convention on the Rights of Persons with Disabilities it signified a commitment to the international community that they would ensure disabled Australians could enjoy the rights entitled to them.

In Victoria, equality is primarily ensured through the Disability Discrimination Act 1992 and the Equal Opportunity Act 2010. Although distinct legislation, the Disability Discrimination Act being enacted by the Commonwealth and the Equal Opportunity Act being enacted by Victoria, broadly speaking both operate in similar way and impose similar requirements. As such, we will use the Equal Opportunity Act as a representative of both.

The first thing to note about the requirements of the Equal Opportunity Act is that it only applies in certain areas of public life: employment, education, the provision of goods and services, accommodation and access to public premises. While this list is relatively short, each of these areas are themselves broadly framed so that in practice they cover the vast majority of situations where discrimination and inequality may occur.

The second thing to note is that the Equal Opportunity Act only applies to certain attributes of individuals. One of these attributes is disability. Disability is defined broadly and incorporates those with visible and invisible disabilities and both permanent and temporary disabilities.

The Equal Opportunity Act forbids two forms of conduct which they refer to as direct and indirect discrimination. Direct discrimination is when a person treats another unfavourable on the basis of their disability. This may include refusing to include someone with a disability in an activity, event or group that you organise.

Indirect discrimination is about imposing a requirement/condition/practice indiscriminately but leads to unreasonable disadvantage for a disabled person because of their disability. An example of this would be requiring a young person with a visual impairment to find out more information about an event only through a printed poster or advert.

The key to indirect discrimination is the concept of reasonableness. This assessment is really up to the person imposing the requirement/condition/practice and is about weighing up the disadvantage caused against the costs and difficulty in providing an alternative. While this decision is up to the person imposing the requirement/condition/practice, the protective nature of the Equal Opportunity Act means that if the disabled person takes legal action, courts and tribunals often take a pro-disabled person perspective and can provide considerable compensation.

While the Equal Opportunity Act forbids certain behaviour, it also imposes a positive obligation for reasonable adjustments to be made for disabled people in the areas of employment, education, and in the provision of goods and services. For example, if an employee had a disability which made them susceptible to fatigue, a reasonable adjustment may be flexible working hours or the ability to work from home. In the provision of services, an organisation may be required to purchase a portable ramp to allow access for those who use wheelchairs or staff members being willing to read out information for someone with vision impairment. Once again, the concept of reasonableness is important here but employers, educators and service providers should be careful in assuming that a court or tribunal will just assume their decision was reasonable.

Further reading:

http://ddlsaustralia.org/what-is-disability-discrimination/

https://www.ohchr.org/EN/HRBodies/CRPD/Pages/ConventionRightsPersonsWithDisabilities.aspx

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