The Law Handbook 2024

782 Section 8: Disability, mental illness and the law d malfunction of part of the body, including: i a mental or psychological disease or disorder (e.g. schizophrenia); or ii a condition or disorder that results in a person learning more slowly than people who do not have the condition or disorder (e.g. Down syndrome); e malformation or disfigurement of a part of the body (e.g. cleft palate, scarring). The definition includes present disability, past disability and ‘imputed’ disability (where a person is perceived to have, for example, a cognitive impairment or an acquired brain injury because they speak slowly). The definition also includes an impairment that may exist in the future (due to a genetic predisposition to that impairment) and, to avoid doubt, behaviour that is a symptom or manifestation of an impairment. Disability Discrimination Act The Disability Discrimination Act 1992 (Cth) (‘ DD Act ’), which significantly predates the UNCRPD, does not cite the convention but aims to: a eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: i work, accommodation, education, access to premises, clubs and sport; ii provision of goods, facilities, services and land; iii existing laws; and iv the administration of Commonwealth laws and programs; b ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; c promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community. Section 4 of the DD Act provides a similar, but even broader, definition of disability than the EO Act. It includes many conditions that are not commonly considered to be disabilities and, as with the EO Act, is more concerned about unfair and discriminatory treatment than with medical or technical accuracy. In the DD Act, disability is defined as: a total or partial loss of the person’s bodily or mental functions; or b total or partial loss of a part of the body; or c the presence in the body of organisms causing disease or illness; or d the presence in the body of organisms capable of causing disease or illness; or e the malfunction, malformation or disfigurement of a part of the person’s body; or f a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or g a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that: h presently exists; or i previously existed but no longer exists; or j may exist in the future (including because of a genetic predisposition to that disability); or k is imputed to a person. NOTE The DRC has made numerous recommendations about strengthening the DD Act, including specific reference to the UNCRPD, and inclusion of provisions for offensive behaviour and vilification. Specific areas of life Health The right to equality of access to healthcare services is articulated in both the EO Act and the DD Act and yet the DRC found that “there is a huge gap between the health outcomes experienced by people with disability and those experienced by the rest of the community”. The DRC found that “people with cognitive disability are subject to systemic neglect in the Australian health system”. While there are a range of initiatives underway to improve health outcomes for people with disability, individuals concerned about their right to accessible healthcare should contact the Disability Liaison Officer for the relevant service to discuss their concerns. All health services should have accessibility information available on their website and in publicly available materials. Education It is unlawful for providers of education services to discriminate against a student or prospective student with disability. This includes all public