Part 5Prohibition of discrimination on ground of disability

Part 5—Prohibition of discrimination on ground of disability Division 1—Discrimination to which Part 5 applies 66—Criteria for establishing discrimination on ground of disability For the purposes of this Act, a person discriminates on the ground of disability— (a) if he or she treats another unfavourably because of the other's disability, or a past disability or a disability that may exist in the future; or (b) if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and— (i) the nature of the requirement is such that a substantially higher proportion of persons who do not have such a disability complies, or is able to comply, with the requirement than of those persons who have such a disability; and (c) if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons who have such a disability, or on the basis of a presumed characteristic that is generally imputed to persons who have such a disability; or (ca) if he or she— (i) fails to provide a safe and proper means of access to, or use of, a place or facilities for a person who requires special means of access to, or use of, the place or facilities as a consequence of the person's disability; or (ii) treats another unfavourably because the other requires special means of access to, or use of, a place or facilities as a consequence of the other's disability, to the extent that he or she is able to effect the provision of access or use; or (d) if, in circumstances where it is unreasonable to do so— (i) he or she fails to provide special assistance or equipment required by a person in consequence of the person's disability; or (ii) he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other's disability; or (e) if he or she treats a person with a disability unfavourably because the person possesses, or is accompanied by, an assistance animal, or because of a related matter (whether or not it is his or her normal practice to treat unfavourably a person who possesses, or is accompanied by, an animal of the same species as the assistance animal); or (f) if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs. 67—Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of disability— (2) It is unlawful for an employer to discriminate against an employee on the ground of disability— (b) by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or 68—Discrimination against agents and independent contractors (2) It is unlawful for the principal to discriminate against a person on the ground of disability— (3) It is unlawful for the principal to discriminate against an agent or independent contractor on the ground of disability— (b) by denying or limiting access to opportunities for promotion, transfer or training or other benefits connected with the agent's or independent contractor's position; or 69—Discrimination against contract workers (1) This section applies to a principal for whom work is done by persons (contract workers) under a contract between the principal and another where the contract workers are employed or engaged by a person other than the principal. (2) It is unlawful for a principal to enter into a contract or arrangement with another for work to be performed by contract workers under which a person is to discriminate against a contract worker on the ground of disability. (3) It is unlawful for the principal to discriminate against a contract worker on the ground of disability— 70—Discrimination within partnerships (1) It is unlawful for a firm, or a person promoting the formation of a firm, to discriminate against a person on the ground of disability— (2) It is unlawful for a firm to discriminate against a partner on the ground of disability— 71—Exemptions (b) a principal engaging a natural person as an independent contractor for purposes not connected with a business carried on by the principal. (2) This Division does not apply to discrimination on the ground of disability in relation to employment or engagement if the person suffering from the disability is not, or would not be, able— (a) to perform adequately, and without endangering himself or herself or other persons, the work genuinely and reasonably required for the employment or position in question; or (b) to respond adequately to situations of emergency that should reasonably be anticipated in connection with the employment or position in question. 72—Discrimination by associations (a) against an applicant for membership on the ground of disability— (i) by refusing or failing to admit the applicant to membership, or to a particular class of membership, of the association; or (ii) in the terms on which the applicant is, or may be, admitted to membership, or to a particular class of membership; or (b) against a member of the association on the ground of disability— 73—Discrimination by qualifying bodies (1) It is unlawful for an authority or body empowered to confer an authorisation or qualification that is needed for, or facilitates, the practice of a profession, or the carrying on or engaging in of a trade or occupation, to discriminate against a person on the ground of disability— (2) This section does not apply to discrimination against a person on the ground of disability where, in consequence of that disability, the person is not, or would not be, able to practise the profession, or carry on or engage in the trade or occupation, adequately or safely. 74—Discrimination by educational authorities (1) It is unlawful for an educational authority to discriminate against a person on the ground of disability— (2) It is unlawful for an educational authority to discriminate against a student on the ground of disability— (3) This section does not apply to discrimination on the ground of disability in respect of admission to a school, college or institution established wholly or mainly for students who have a particular disability. 75—Discrimination by person disposing of interest in land (1) It is unlawful for a person to discriminate against another on the ground of disability— (2) This section does not apply to the disposal of an interest in land by way of, or pursuant to, a testamentary disposition or gift. 76—Discrimination in provision of goods and services (whether for payment or not) to discriminate against another on the ground of disability— (1a) For the purposes of the application of subsection (1) to services comprised of access to or use of a place or facilities that members of the public are permitted to enter or use (see paragraph (a) of the definition of services to which this Act applies), the owner of the place or facilities and the occupier of the place or the place where the facilities are provided will each be taken to offer or provide the services. (2) If the nature of a skill varies according to whether it is exercised in relation to persons who have a particular disability or to those who do not have such a disability, a person does not contravene subsection (1) by exercising the skill in relation to only those persons who have a particular disability, or only those who do not have such a disability, in accordance with the person's normal practice. (3) This section does not apply to discrimination against a person on the ground of disability in relation to the performance of a service if, in consequence of the disability, that person requires the service to be performed in a special manner and the person performing the service— (a) cannot reasonably be expected to perform the service in that manner; or (b) cannot reasonably be expected to perform the service in that manner except on more onerous terms than would otherwise apply. 77—Discrimination in relation to accommodation (1) It is unlawful for a person to discriminate against another on the ground of disability— (a) in terms or conditions on which accommodation is offered; or (c) by deferring such an application or according the applicant a lower order of precedence on a list of applicants for that accommodation. (2) It is unlawful for a person to discriminate against a person for whom accommodation has been provided on the ground of disability— (d) by subjecting the person to detriment. (2a) This section does not apply to discrimination in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation. 78—Discrimination in relation to superannuation (1) Subject to subsection (2), it is unlawful for a person who provides a superannuation scheme or provident fund to discriminate against a person on the ground of disability— (a) by providing a scheme or fund that discriminates or, if the other person were to become a member of the scheme or fund, would discriminate, or require or authorise discrimination, against the other person; or (b) in the manner in which the scheme or fund is administered, except to the extent that— (c) the discrimination— (i) is based on actuarial or statistical data from a source on which it is reasonable to rely; and (ii) is reasonable having regard to the data and other relevant factors; or (d) if no such actuarial or statistical data is available, the discrimination is reasonable having regard to other relevant factors. (2) Subsection (1) does not apply in relation to a superannuation scheme or provident fund provided for employees— (a) to which the employer makes contributions; and (b) under which a greater number of the members (not including members who are no longer employed by an employer who participates in the scheme or fund) reside in any one other State or Territory than reside in this State. (3) Subject to any order of the Tribunal or a court in proceedings under this Act, nothing in this section has the effect of rendering a superannuation scheme or provident fund, or a provision of such a scheme or fund, void. Division 7—General exemptions from Part 5 79—Exemption in relation to remuneration This Part does not render unlawful discriminatory rates of salary, wages or other remuneration payable to persons who have disabilities. 79A—Exemption in relation to infectious diseases This Part does not render unlawful a discriminatory act if the act— (a) is directed towards ensuring that an infectious disease is not spread; and (b) is reasonable in all the circumstances. 80—Exemption for charities (a) affect a provision in a charitable instrument for conferring benefits wholly or mainly on persons who have a particular disability; or 81—Exemption in relation to sporting activities This Part does not render unlawful the exclusion of a person who has a disability from participation in a sporting activity— (a) if the activity requires physical or intellectual attributes that the person does not possess; or (b) if, in the case of a sporting activity conducted wholly or mainly for persons who have a particular disability, the person's disability is not of that kind. 82—Exemption for projects for benefit of persons with particular disability This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons who have a particular disability. 84—Exemption for unjustifiable hardship (1) This Part does not render unlawful discrimination by a person on the ground of disability in relation to the provision of access to or use of a place or facilities if the provision of access or use would impose unjustifiable hardship on the person. (2) In determining what constitutes unjustifiable hardship, 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 the persons concerned; and (b) the effect of the disability of the person concerned; and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. 85—Exemption in relation to insurance This Part does not render unlawful discrimination on the ground of disability in the terms on which an annuity, life assurance, accident insurance or other form of insurance is offered or may be obtained, if— (a) the discrimination— (i) is based on actuarial or statistical data from a source on which it is reasonable to rely; and (ii) is reasonable having regard to that data and other relevant factors; or (b) if no such actuarial or statistical data is available, the discrimination is reasonable having regard to other relevant factors.