The Law Handbook 2024

Chapter 11.1: Discrimination and human rights 1005 a person who is in a business, sporting or recreational relationship with the person) of people with disabilities (s 7) and prohibits disability harassment (pt 2 div 3). It is also unlawful to discriminate against someone because they have a carer, an assistant, use an assistance animal or have a disability aid (s 8). The minister can formulate standards applicable to the areas of public life covered by the DD Act (s 31(1)). Disability Standards provide assistance to comply with the DD Act by specifying in greater detail the steps that should be taken to ensure that the general requirements of the DD Act are met. The Access to Premises Standards, the Public Transport Standards, and the Education Standards are currently in operation. It is unlawful to fail to comply with a Disability Standard (s 32); compliance with the relevant standard equates to compliance with the DD Act itself (s 34). Further information about the Transport, Education and Premises Disability Standards can be found at www.humanrights.gov.au. Under the DD Act: • it is an offence to publish or display an advertise­ ment that indicates an intention to discriminate (s 44) and it is unlawful to incite others to discriminate (s 43); • it is unlawful to cause, instruct, induce, aid or permit others to discriminate (s 122); • it is unlawful to request information to discriminate against a person where that information would not be requested of people without the disability in the same circumstances or where the information relates to the person’s disability (s 30). This does not apply where a person can show that they did not request the information for the purpose of discriminating against the other person on the ground of their disability (s 30(3)); and • an employer or principal may be liable for the discriminatory acts of their employees or agents unless they can show that they took reasonable precautions to stop the employee or agent doing the act (s 123). The DD Act contains a range of exemptions, including for charities, and in the areas of migration, superannuation and insurance (pt 2 div 5). It is not unlawful to take special measures (also called ‘positive discrimination’) to ensure equal opportunities exist for people with disability, or to meet the special needs of people with disability (s 45). Age Discrimination Act The Age Discrimination Act 2004 (Cth) (‘ AD Act ’) addresses age discrimination in many areas of public life. The AD Act makes direct and indirect discrimination on the ground of age unlawful in work, education, accommodation, the provision of goods, services and facilities, access to premises, and the administration of Commonwealth laws and programs, as well as in other areas of public activity. Under the AD Act: • it is an offence to publish or display an advertise­ ment that indicates an intention to discriminate (s 50) and it is unlawful to cause, instruct, aid or permit others to discriminate (s 56); • it is unlawful to request information to discriminate against a person where that information would not be requested of persons of a different age in the same circumstances (s 32); and • an employer or principal may be liable for the discriminatory acts of their employees or agents unless they can show that they took reasonable precautions to stop the employee or agent doing the act (s 57). The AD Act contains a range of exemptions, including for youth wages (renumeration for persons aged under 21) (s 25), charities, voluntary and religious bodies, and in the areas of migration, superannuation and insurance (pt 4 div 4). The AD Act also contains a wide exemption for ‘positive discrimination’, covering acts that: • provide a ‘bona fide benefit’ to persons of a particular age; • are intended to meet a need of persons of a particular age; or • are intended to reduce a disadvantage experienced by people of a particular age (s 33). Other human rights protection Human rights inquiries The AHRC Act gives the AHRC the power to investigate acts and practices done ‘by or on behalf of the Commonwealth’ that may be inconsistent with human rights recognised in certain international instruments. These include the: