Posted on March 11, 2011 by

Publicly Discriminating: Disability Discrimination Applies To More Areas Than You Think

One of the aspects of a council’s charter is to exercise its functions in a manner that is consistent with and promotes social justice principles of equity, access, participation and rights (s8 Local Government Act 1993).  An essential element of this aspect of the charter is compliance with the legal obligations imposed by the Commonwealth Disability Discrimination Act 1992 (the Act).

The term Disability has an extremely wide compass.  It covers a full range of physical disabilities and also extends to disorders, illnesses or diseases that affect a person’s thought processes, perception of reality, emotions or judgment and includes disabilities that presently exist, previously existed, may exist in the future or are imputed to a person (s4 of the Act).  Disability discrimination therefore can extend to people who do not have a disability but are imputed to have one (s4 of the Act).

Disability discrimination, whether direct or indirect, occurs when a person treats another person with a disability less favourably than they would treat a person without the disability in circumstances that are not materially different (s5(1) of the Act).

Disability discrimination, whether direct or indirect, also occurs when a person does not make, or proposes not to make, reasonable adjustments for the person with a disability and the failure to make reasonable adjustments has the effect of the person being treated less favourably because of the disability (s5(2) of the Act).  This explicit obligation to make reasonable adjustments was inserted into the Act in 2009 under the Disability Discrimination and Other Human Rights Legislation Amendment Act 2008 in order to clarify the position taken by the High Court in Purvis v State of New South Wales (Department of Education and Training) and Another (2003) 217 CLR 92 (Purvis).

The case law supports a wide and permissive view of what constitutes less favourable treatment within the Act, having regard to its beneficial objects which include to eliminate, as far as possible, discrimination against persons on the ground of a disability in the areas of…access to premises….the provision of goods, facilities, services and land: see Purvis.

Most Councils would be aware that the obligations under the Act extend to access to premises and the provision of goods, services and facilities by councils (see ss 23 and 24 of the Act).  This most obviously applies to, for example, a ramp to enter a council building.  However the term premises is not just limited to a council building.  Premises is also defined to include a place (whether enclosed or built on or not) (see s4 of the Act).  This means that the Act applies to public plazas, foot paths and other public areas.

Lindsay Taylor Lawyers was recently requested to advise on a complaint made by a vision impaired person in relation to a Draft Policy in relation to the use of a public plaza for advertising and merchandising and outdoor eating areas.  The vision impaired person argued that the Draft Policy permitted businesses to block the buildings’ alignment with a footpath thereby disturbing a Continuous Accessible Path of Travel for that person in breach of sections 23 and 24 of the Act. 

The vision impaired person requested that ‘reasonable adjustments’ be made to the Draft Policy.  Under the provisions of the Act, it was clear that the vision impaired person would be treated less favourably because of their disability and therefore disability discrimination would occur if reasonable adjustments were not made.

Many councils maintain policies which permit businesses to place advertising or merchandising or establish outdoor eating areas in public areas.  The above example is just one instance of how wide reaching the provisions of the Act are and can result in a council inadvertently discriminating against a person with a disability.  When considered in the context of the very wide definition of Disability under the Act, it is likely that disability discrimination is occurring regularly without the knowledge of councils and/or persons with a disability.

Councils and other public authorities should therefore be careful to ensure that the Act is considered when establishing policies in relation to public areas, as well as in the more obvious fields of access to buildings, the provision of services, and the exercise of regulatory functions.