What is discrimination?
Discrimination is when you’re treated unfairly or less fairly because you’re a person with disability. It’s also when you’re treated unfairly or less fairly because you’re a relative, friend, carer or coworker of a person with disability. Discrimination might also happen because of something else about you – for example, your sex, religion or race.
There are two types of discrimination.
Direct discrimination is when someone treats a person with disability unfairly or less fairly because of their disability. An example might be someone telling you that your child can’t take part in a playgroup because his appearance would upset the other parents and children.
Indirect discrimination is when a person with disability is prevented from doing something a person without that disability can do. In this case, no-one sets out to be deliberately unfair, but the end result is unfair. An example might be your child not being able to use the local swimming pool because it has no ramp for wheelchairs.
Lawful and unlawful discrimination
People with disability can’t be discriminated against in:
- access to goods, services and facilities
- access to public places
- clubs and associations
- employment and work.
Sometimes discrimination might be lawful, in circumstances like:
- court orders
- insurance and superannuation
- visa applications and other migration matters
- public health
People or organisations accused of discrimination against someone might argue that if they hadn’t discriminated, it would have caused ‘unjustifiable hardship’. This means it would have been unreasonably difficult for them to make the adjustments necessary to accommodate a person’s disability.
What is disability?
The Australian Disability Discrimination Act 1992 defines disability very broadly. It includes a very long list of possible conditions, including those that a person has now, has had in the past, might have in the future, or is believed to have. It also includes some conditions that you might not think of as disability.
Under the Act, disability includes:
- intellectual disability
- physical disability
- mental illness
- diseases or illnesses
- acquired brain injury
- developmental disability
- learning difficulties and disorders
- physical disfigurement.
Australian Government law: Disability Discrimination Act 1992
The Australian Disability Discrimination Act 1992 is an Australia-wide law that says that people can’t be treated unfairly because they have past, existing or future disability. The Act defines disability, as well as lawful and unlawful discrimination.
The Australian Human Rights Commission administers the Act and decides what to do if there’s a complaint about disability discrimination covered by Australian Government law.
Further information about disability discrimination at the Australian Government level
- Australian Human Rights Commission – About disability rights
- Australian Human Rights Commission – A brief guide to the Disability Discrimination Act
- Australian Human Rights Commission – Know your rights: Disability discrimination
State and territory anti-discrimination laws
The Australian states and territories have anti-discrimination laws and bodies that deal with complaints about discrimination.
Australian Capital Territory: ACT Discrimination Act 1991
For information or help, contact the ACT Human Rights Commission:
- Phone: (02) 6205 2222
- SMS: 0466 169 997
- TTY: (02) 6205 1666
- Email: firstname.lastname@example.org
New South Wales: NSW Anti-Discrimination Act 1977
For information or help, contact the Anti-Discrimination Board of NSW:
- Phone: (02) 9268 5544 or 1800 670 812
- Email enquiries: email@example.com
- Email complaints: firstname.lastname@example.org
Northern Territory: Northern Territory of Australia Anti-Discrimination Act 2014
For information or help, contact the Northern Territory Anti-Discrimination Commission:
- Phone: (08) 8999 1444 or 1800 813 846
- Fax: (08) 8981 3812
- Email: email@example.com
Queensland: Queensland Anti-Discrimination Act 1991
For information or help, contact the Anti-Discrimination Commission Queensland:
- Phone: 1300 130 670
- Email: firstname.lastname@example.org
South Australia: South Australian Equal Opportunity Act 1984
For information or help, contact the South Australian Equal Opportunity Commission:
- Phone: (08) 8207 1977 or 1800 188 163
- Fax: (08) 8207 2090
- TTY: (08) 8207 1911
- Email: email@example.com
Tasmania: Tasmanian Anti-Discrimination Act 1998
For information or help, contact Equal Opportunity Tasmania:
- Phone: (03) 6165 7515 or 1300 305 062
- SMS: 0409 401 083
- Translating and Interpreting Service: 131 450
- Email: firstname.lastname@example.org
Victoria: Victorian Equal Opportunity Act 2010
For information or help, contact the Victorian Equal Opportunity and Human Rights Commission:
- Phone: 1300 891 848
- TTY: 1300 289 621
- Email: email@example.com
Western Australia: Western Australian Equal Opportunity Act 1984
For information or help, contact the WA Equal Opportunity Commission:
- Phone: (08) 9216 3900 or 1800 198 149
- Fax: (08) 9216 3960
- TTY: (08) 9216 3936
- Email: firstname.lastname@example.org
Which anti-discrimination law to use
You can’t have your disability discrimination complaint heard at the same time under both the Australian Disability Discrimination Act and an equivalent state or territory law. All the Acts have advantages and disadvantages, and the best one for you to use depends on your case.
Some of the things to think about are:
- whether your complaint is covered by the Australian Act or a state or territory act
- what outcomes you want – for example, if you want financial compensation, you might choose to use the Australian Act because the courts that administer this Act have no maximum limit on the amount of compensation they can give
- how much it might cost you to make complaints under different acts
- whether there are exemptions that apply under one act but not another.
The Human Rights Commission, the relevant state or territory authority or a community legal centre can look at your circumstances and help you decide which law to use.
Making a complaint about discrimination
If you’re thinking about making a complaint about disability discrimination, you should think about things like:
- what you want to get out of the complaint process
- how much making a complaint will cost you
- whether you’ll need an advocate or a lawyer to help you make the complaint.
Here’s some information that can help you get started on a complaint about disability discrimination.
Who can make a complaint about discrimination?
Under the Australian Disability Discrimination Act and corresponding state or territory laws, you can complain of disability discrimination if you:
- are a person with disability and believe you’ve been unlawfully discriminated against because of it
- are a parent, spouse/partner, friend or carer of someone with disability and believe that you’ve been discriminated against
- are acting on behalf of a person with disability (or that person’s partner, friend or carer) who is experiencing unlawful disability discrimination. This covers parents acting on behalf of their children with disability.
How do you make a complaint about discrimination?
You must make a complaint in writing and send it to either the Human Rights Commission or the relevant state or territory agency. The Commission and the state and territory agencies all have standard online complaint forms that might help, but you don’t need to use those forms if you don’t want to.
When you make a complaint, make sure you include the following details:
- contact details for all parties involved
- a report of what happened and who was involved
- an explanation of what you would like to happen.
Be sure to keep a copy of your complaint.
Time limits on complaints
You have to make a complaint within 12 months of the discrimination happening unless you have a very good reason for the time to be extended.
How are complaints assessed?
When the Human Rights Commission gets a written complaint, it works out whether the circumstances of the complaint are covered by the law. If it believes they’re not, or that they fall under some other area of the law, the Commission lets you know that it can’t accept the complaint.
When the Commission accepts a complaint, it investigates it and tries to resolve it through conciliation. Conciliation is when you and the person or organisation you’ve made the complaint about meet to talk about the complaint and try to agree on how best to sort out the issue.
If this doesn’t work, you can take your complaint to the Federal Court of Australia or the Federal Circuit Court.
If you’re making a complaint under the Australian Disability Discrimination Act you can send it by mail, fax or via the Human Rights Commission’s complaints page. The Commission’s complaint-handling process is free.