28 Aug 2009

Discrimination amendments now law

by Saul Harben

Employers should consider the practical implications of the changes on their approach to recruitment, managing workplace issues, termination of employment and the like.

The Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) received Royal Assent on July 8 2009, amending the Age Discrimination Act 2004 (Cth) (ADA) and Disability Discrimination Act 1992 (Cth) (DDA), under which disability and age discrimination is unlawful.

The amendments have made employees' ability to bring age and disability discrimination complaints easier, and extended the exceptions to disability discrimination available to employers. They were primarily based on the Productivity Commission's 2004 report on federal disability and in response to Purvis v New South Wales (Department of Education) [2003] HCA 62 and Forest v Queensland Health [2007] FCA 93.

Minor amendments were also made to the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth). These amendments include changing the Commission's name to the Australian Human Rights Commission, improving the efficiency of their complaints handling process, and extending the period for a terminated complaint to be taken to the Federal or Federal Magistrates Court from 28 to 60 days.

Increased employee access to age and disability discrimination complaints


Previously, the age of the person had to be the "dominant reason" in order for unlawful discrimination to be found. Now, the "dominant reason" test has been removed and age need only be one of a number of reasons for taking action which disadvantages a complainant. Unlawful discrimination will have occurred in this circumstance.

This amendment was recommended by the House of Representatives Standing Committee on Legal and Constitutional Affairs' 2007 report entitled "Older People and the Law" and brings the ADA into line with the corresponding provisions of other discrimination legislation.


It is now clear that the definition of "disability" under the DDA includes:

  • a genetic predisposition to a disability; and
  • behaviour that is a symptom or manifestation of a disability.

This amendment is not overly contentious as it is likely that the previous definition indirectly covered these matters, as suggested by the High Court in Purvis.

The ambit of indirect discrimination under the DDA was also widened, so indirect discrimination occurs where:

  • a disabled person is required to comply with a requirement or condition;
  • they don’t comply, or are unable to, because of their disability;
  • the requirement or condition was not reasonable; and
  • either:
    • the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability; or
    • the employer hasn’t made reasonable adjustments that would enable the employee to comply - to the disabled employees disadvantage.

Previously, instead of the fourth factor, it had to be shown that the requirement or condition was one with which a substantively higher proportion of persons without the disability were able to comply, which was much harder to satisfy. If the employer wishes to assert that the requirement or condition is reasonable, they now bear the burden of proving this, as opposed to the previous position where the employee bore the onus of showing that it was unreasonable.

The drafters of the DAA considered the issue raised in Purvis regarding whether an employer was required to make "reasonable adjustments" for disabled employees. The DAA clarifies this position, confirming that an employer must make reasonable adjustments and that a failure to do so will amount to discrimination if it results in the disabled person being treated less favourably because of their disability than a non-disabled person in similar circumstances.

The DAA similarly responded to the issue raised in Forest regarding whether the DDA covers discrimination on the basis that a person has a carer, assistant aid or assistant animal. The DAA clarifies that it does, except in relation to specific circumstances regarding the control, health and training of an assistance animal.

Where unlawful discrimination has occurred, the discriminator cannot then request or require the disabled person to provide information in connection with, or for the purposes of doing, the discriminatory act that people without that disability wouldn’t have to provide. This now extends to such a request or requirement made for information relating to the disability. However, this will not apply to information required to determine reasonable adjustments or whether the employee can carry out the inherent requirements of their position.

Widening of disability discrimination exceptions available to employers

The DDA provides an exemption to unlawful discrimination if an employee's disability precludes them from performing the inherent requirements of their position (after any reasonable adjustments) or it would be unjustifiably hard for their employer to accommodate their disability. The extended ability for employees to bring disability complaints has been balanced by the wider application of these exceptions.

The inherent requirements exception now covers employers in all employment situations, including the terms and conditions on which employment is offered or provided. Further, it is clear that the employee's relevant past training, qualifications/experience and work performance will be considered when determining whether this exception applies, along with any other relevant factors.

The unjustifiable hardship exception is now available in relation to all unlawful disability discrimination, except harassment and victimisation. The criteria for determining "unjustifiable hardship" have been expanded to include the availability of financial and other assistance to the disabled person and the benefit or detriment to the community at large. It is now clear that the party claiming unjustifiable hardship bears the onus of proving it applies.

Lessons for employers

Employers should be aware of their increased potential liability for age and disability discrimination and the wider application of the inherent requirements and unjustifiable hardship exceptions to disability discrimination.

Employers should consider the practical implications of the changes on their approach to recruitment, managing workplace issues, termination of employment and the like. This may require reviewing and updating relevant policies and procedures, retraining of staff responsible for handling discrimination complaints and refresher discrimination training for all staff. Employers will also have to go beyond consistent application of criteria and equal treatment to addressing issues such as what can reasonably be done to accommodate an employee's disability.


Thanks to Rosalie Poole for her help in writing this article.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.