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5. Mental health and work: your rights and responsibilities

Do I have to disclose my mental illness to my employer?

If your mental illness does not affect your ability to safely do your job, then you do not have a legal obligation to disclose it to your employer.

You may be obliged to disclose your mental illness to your employer if:

  • Your mental illness will affect your ability to do a particular job or task, and you would like your employer to make an adjustment for you (e.g. you will work the same hours but require more frequent breaks throughout the days);
  • Your mental illness could reasonably be seen to create a health and safety risk to you and/or other people at work.

If you have a mental illness and are unsure about whether you are required to disclose this to your employer, then you should seek legal advice.

Can I take sick leave if I’m too mentally unwell to go to work, and do I need to provide my employer with a medical certificate?

All employees who are not casual employees in the ACT are entitled to a minimum of 10 days paid personal or carer’s leave each year. If you are a casual employee or a contractor, then your entitlements will be different and depend on your contract with your employer. You may not be entitled to any paid leave.

Personal leave includes any kind of personal illness or injury which includes mental health conditions. If you are taking personal leave, you need to notify your employer as soon as possible.

Your employer may require you to provide a medical certificate for any paid personal leave taken as evidence that you are unfit to work, in particular if you take multiple consecutive days. The law allows your employer to ask you to provide a medical certificate for any period of paid personal leave you take, however employers may have policies which tell you when a medical certificate will be required. This is usually included in your employer’s leave policy, but your employer should also be able to advise you when a medical certificate will be required.

If you are unsure about your employment status or entitlements, then you should seek legal advice.

What are my rights if I feel that I’m being treated unfairly by my employer because of my mental illness?

In the ACT, there are employment and anti-discrimination laws that protect you from unfair treatment by your employer because of your mental illness. It is important to raise these issues with your employer, however if you don’t feel like your concerns are being addressed, you may be able to take legal action. If you feel that you are being treated unfairly because of your mental illness, then you should seek legal advice.

I recently started a new job. When I told my employer I couldn’t do a particular task because of my mental illness, they told me I wasn’t the right fit for the job and fired me. What are my rights?

It is important to seek legal advice in this situation as your legal options will depend on lots of different factors, such as the nature of the role you have been hired to perform. Your employer is required to make reasonable adjustments to accommodate your mental illness, however you still need to be able to perform the essential requirements of the role. This means that if your employer makes reasonable adjustments and you still can’t perform the role, they may be entitled to terminate your employment.

If you have been terminated, it is important to seek legal advice promptly as there are certain time frames for making unfair dismissal claims.

My employer says I’m a contractor and I don’t have rights. Is this true?

Whether you are a contractor or an employee according to the law depends on many different factors. The main test is what is written in your contract. Even if your employer states that you are a contractor this may not be correct. Factors which may indicate if you are a contractor or an employee include:

  • whether they have hired and pay you directly or they have hired and pay your business – (e.g. Do they pay “Mr J Smith” or do they pay “J Smith Operations”)
  • whether you wear a uniform or use equipment provided by your employer or if you own your own equipment
  • how much control you have over the work that you do – (e.g. when the work is done, whether they set your hours, how much control they have over how you carry out your work).

In the ACT, even if you are a contractor, you are still protected by anti-discrimination laws that give you the right to not be discriminated against because of your mental illness.

If you are not sure whether you are a contractor or an employee and you think your rights are not being recognised by your employer, then you should seek legal advice.

What are my rights if I need my employer to make some adjustments to my working arrangements because of my mental illness?

The law requires your employer to make reasonable adjustments to ensure that you are not being unfairly treated or disadvantaged because of your mental illness. Whether an adjustment is reasonable will depend on lots of different factors, such as the type of work you perform, any unfairness or disadvantage you will experience if the adjustment is not made, and the business needs of your employer. Depending on these factors, you may be entitled to adjustments including flexible working arrangements, longer breaks, and additional time off work. If your employer has refused to make an adjustment to accommodate your mental illness which means you cannot perform your role, then you should seek legal advice.

I want to make a complaint that my employer has discriminated against me because of my mental illness. Where do I go?

Where you take your complaint will depend on the law you want to make your complaint under. Complaints under the ACT anti-discrimination laws can be made to the ACT Human Rights Commission. You may also be able to lodge a complaint in the Australian Human Rights Commission. Your options for making a complaint will depend on many factors, including how long ago the discrimination occurred and on your individual circumstances. It is important to seek legal advice about the best option for your situation.

Disclaimer

This Factsheet contains general information available at the time of printing. It does not constitute legal advice. If you have a specific legal problem, please contact our Mental Health Justice Clinic on 6218 7900.

Canberra Community Law is entirely independent of Housing ACT. All assistance is free.

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4. Disability Modifications to Public Housing

1. What is a disability modification to public housing?

People with disabilities may need changes, or modifications, to their homes so they can live independently, comfortably, or move more easily and safely. For example, an access ramp may need to be installed in housing to accommodate for a wheelchair. Housing ACT is responsible for making modifications to public housing to accommodate people with disabilities. Housing ACT’s Property Condition and Responsibility Guide provides that Housing ACT will modify existing housing or provide newly constructed/upgraded housing to meet the essential needs of people with disabilities subject to assessment.

Housing ACT recognises a disability modification as any modification “to meet the essential needs
of people with disabilities.” This should include anything essential for your disability. It commonly includes:

  • internal grab rails and external hand rails;
  • hand held showers or hobless showers;
  • lever handled taps and door handles;
  • door wedges for wheelchairs, access ramps, wheelchair accessible paths; and
  • large rocker switches.

Where disability modifications are required, Housing ACT has to make sure the modifications meet certain standards. For example, the type and height of taps and latches should enable you to use them; ramps should give easy access and not be slippery, and all corners and entry ways should have enough clear turning area for a person in a wheelchair to turn unaided.

2. How do I apply for a disability modification through housing ACT?

You can apply for a disability modification in your Housing ACT property by contacting the Disability Modifications Officer at Housing ACT (the relevant contact information is listed at the end of this factsheet).

When you speak to the Disability Modifications Officer, they will start by assessing your request. They will decide if your request requires an assessment by an Occupational Therapist (OT). You may be asked to complete Housing ACT’s Application to Modify a Housing ACT Property form. Housing ACT can provide you with a copy of this form. Housing ACT has a form that your GP could complete in support of a modification request, otherwise you can ask your treating health professional (such as an OT) to provide a letter supporting your application.

How is my request assessed?

Some disability modifications can be approved by the Disability Modifications Officer without an OT assessment based on the evidence you can provide. For example, the following alterations can be approved if you provide Housing ACT with a letter from your GP:

  • lever taps and lever door handles;
  • hand rails along the side of steps;
  • handheld showers; and
  • clothesline height adjustments.

For other modifications, Housing ACT will need an OT to assess your situation. Some examples of modifications that Housing ACT will need an OT assessment for include:

  • installing grab rails or hand rails;
  • widening doorways;
  • installing ramps; and
  • major bathroom or kitchen upgrades.

If you already have an OT, they are often able to make the assessment. Your OT will need to send their report directly to the Disability Modifications Officer. If you don’t have an OT, the Disability Modifications Officer can refer you to the Housing ACT Occupational Therapy Service. They will provide a reference number and phone number for you to contact an OT to arrange your assessment. Once the OT has conducted their assessment, they will send their report directly to the Disability Modifications Officer.

Further information on OT services can be found on this website: https://www.communityservices.act.gov.au/hcs/policies/occupational-therapy-services.

What happens if my request is approved?

If the OT’s report to the Disability Modifications Officer recommends disability modifications to your property, or if the Disability Modifications Officer approves your request without an OT assessment, the Disability Modifications Officer will ensure a request is lodged with Housing ACT’s Maintenance provider. The time frames for completion may vary depending on the modifications.

3. My application for a disability modification was rejected, are there any further steps I can take?

If Housing ACT rejects your request for a disability modification, this is not a decision that can be reviewed through Housing ACT’s appeals process. However, you may be able to make a disability discrimination complaint to the ACT Human Rights Commission or the Australian Human Rights Commission.

For more information on making disability discrimination complaints, see our Fact Sheets
on “Disability Discrimination Complaints in the ACT Human Rights Commission” and “Disability Discrimination Complaints in the Australian Human Rights Commission”.

You should seek legal advice if you are not sure about this avenue.

Can the NDIS fund my disability modifications?

The NDIS does not fund disability supports which are more appropriately funded by another system. However, if you are a participant, the NDIS might fund your public housing modifications on a case-by-case basis if the modification is not part of Housing ACT responsibilities to meet the needs of disabled people. For example, the NDIS is unlikely to fund major renovations to a Housing ACT property to make it a fully accessible property. In addition to not being Housing ACT’s responsibility, the modification will still need to meet all the other requirements under the NDIS, including being a reasonable and necessary support and representing value for money.

Often, it might be best to apply first for a modification to Housing ACT. If they refuse, you can apply for the modification under the NDIS. You might be able to use the rejection as evidence that Housing ACT does not consider it their responsibility.

The process for applying for funding to modify your home under the NDIS will depend on whether you are already a participant and what is in your support plan. If you already have a Local Area Coordinator or Support Coordinator, you can ask them for help. Otherwise, you can contact the NDIA (see contact details at the end of this factsheet).

If the NDIS is funding your disability modifications (or if you want to pay for your own modifications), you will still need to request permission from Housing ACT to modify your public housing as described below.

Can I make disability modifications at my own cost?

If Housing ACT does not approve your request for a disability modification, you may also request permission to make modifications to your Housing ACT property at your own cost. Modifications made at your own cost will need to be carried out by a qualified tradesperson and/or a licensed builder and needs to meet Housing ACT property standards. You will be responsible for maintaining these modifications. To request permission to modify your housing at your own cost, you should contact your Housing Manager and request an Application to Modify a Housing ACT Property form.

In the ACT, if you are making a modification to assist with your disability, for example, access ramps or safety rails, and have provided a written recommendation by a health practitioner in support of your request, a lessor can only refuse consent for the modification with approval from the ACT Civil and Administrative Tribunal (‘the Tribunal’). The landlord must apply to Tribunal for this approval. If the tenant requests consent for a special modification in writing from the landlord and the landlord does not respond within 14 days, the landlord is taken to have consented.

4. Useful contacts and information

  1. Canberra Community Law: 02 6218 7900
  2. Housing ACT Disability Modifications Officer: 6207 3091 / HousingMaintenance@act.gov.au
  3. Disability Modifications, Asset Management Branch, Housing ACT, Locked Bag 3000, Belconnen ACT
  4. Housing ACT Occupational Therapy Service
  5. https://www.communityservices.act.gov.au/hcs/policies/occupational-therapy-services
  6. Canberra Community Law, Disability Law Resources
  7. https://canberracommunitylaw.org.au/resources/disability-law/
  8. ACT Human Rights Commission:
    02 6205 2222 / human.rights@act.gov.au
  9. Australian Human Rights Commission: 1300 369 711
  10. NDIS: 1800 800 110 / NAT@ndis.gov.au / GPO Box 700, Canberra, ACT
  11. https://www.ndis.gov.au/
  12. Housing ACT Property Standards Condition and Responsibility Guide
  13. https://www.communityservices.act.gov.au/__ data/assets/pdf_file/0003/141717/Condition_ and_Responsbiility_Guide.pdf
  14. Tenant’s Guide to Repairs & Maintenance
  15. https://www.communityservices.act.gov.au/hcs/policies/tenants-guide-to-repairs-and-maintenance/section-questions-and-answers

Disclaimer

This Fact Sheet contains general information available at the time of printing. It does not constitute legal advice. If you have a specific legal problem, please contact us on 6218 7900.

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3. Assistance animals and your rights

What is an assistance animal?

An assistance animal is an animal that is trained to assist a person to alleviate the effect of a disability.

The Discrimination Act 1991 (ACT) (Discrimination Act) provides that an assistance animal is an animal that is trained to help a person alleviate the effect of their disability.

The Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act) more specifically provides that an assistance animal is a dog or other animal that is:

  • accredited as an assistance animal under a State or Territory law that provides for the accreditation of assistance animals
  • accredited by a prescribed animal training organisation, or
  • trained to assist a person with disability to alleviate the effect of the disability and meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

Assistance animals can provide a range of support for people with disability and health conditions. Some examples of support that assistance animals can provide include:

    • reducing anxiety
    • performing personal care activities, such as

opening doors or carrying items

  • helping people with vision impairment move safely
  • alerting a person with hearing impairment to sounds
  • detecting high or low blood sugar levels in people with diabetes.

What rights do people with assistance animals have?

People with assistance animals have the right to access all public places that people are normally allowed access to (e.g. hospitals, hotels, public transport, restaurants, schools shopping centres).

People with assistance animals have these public access rights whether or not:

  • the assistance animal is wearing a special coat or harness
  • the assistance animal has been accredited under an assistance animal accreditation scheme, such as the ACT accreditation framework
  • the person with an assistance animal has an ID card that confirms their animal is an assistance animal.

Discrimination rights for people with assistance animals

Generally, it is against the law to treat someone unfairly in an area of public life specified under the Discrimination Act or Disability Discrimination Act, because they have an assistance animal. Examples of areas of public life covered by the Acts include employment, education, access to premises and in the provision of goods and services.

There are some exceptions that apply. For example, under the Disability Discrimination Act, it is not unlawful for another person or organisation to:

  • request or require a person with an assistance animal to remain in the control of the person with disability, or someone else on behalf of the person with disability
  • discriminate against a person with an assistance animal if they reasonably suspect that:
    • discriminate against a person with an assistance animal if they reasonably suspect that:
    • the discrimination is reasonably necessary to protected public health or the health of other animals
  • discriminate against the person with an assistance animal if they request or require the person with disability to provide evidence that their animal is an assistance animal, and the person with the animal does not:
    • produce evidence that the animal is an assistance animal, or
    • produce evidence that the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

Offences relating to public access rights for people with assistance animals

The Domestic Animals Act 2000 (ACT) makes it an offence for another person or organisation:

  • to stop a person with an assistance animal from entering or using a public place or premises because of the animal, without a reasonable excuse
  • to stop an assistance animal from entering a public place or premises, without a reasonable excuse
  • to remove an assistance animal from a public place or premises, unless the person or organisation has a reasonable excuse
  • for a person or organisation who has been shown evidence that an animal is an accredited assistance animal by the person with an assistance animal to:
    • stop the person with the animal from entering or using a public place or premises because of the animal
    • stop the animal from entering a public place or premises
    • remove the animal from a public place or premises, and
  • to require a person with an assistance animal to pay a fee or charge to bring an assistance animal into a public place or premises.

For each of these offences:

  • Domestic Animal Services can issue a $500 fine.
  • If the matter were to proceed to the ACT Magistrates Court, the maximum penalty is 50 penalty units ($8,000 for an individual, or $40,500 for a corporation).

What can I do if I have been treated unfairly because I have an assistance animal?

Make a discrimination complaint

If you have been treated unfairly because you have an assistance animal, you may be able to make a discrimination complaint to the ACT Human Rights Commission or the Australian Human Rights Commission

You should consider a number of factors in deciding which commission to complain to. You should seek legal advice to make this decision. You can seek free legal advice at the legal services listed below.

You do not need a lawyer to make a complaint but it can help to discuss your complaint with a lawyer before you lodge it so that you are sure that you have included all relevant information.

For more information on making disability discrimination complaints, see Fact Sheets “Disability Discrimination Complaints in the ACT Human Rights Commission” and “Disability Discrimination Complaints in the Australian Human Rights Commission”.

Report the incident to Domestic Animal Services

If you or someone you know has been denied their public access rights because they have an assistance animal, you can report the incident to Domestic Animal Services.

Domestic Animal Services will investigate the matter (including contacting parties involved). Domestic Animal Services may then decide to issue a fine or consider referring the matter to the ACT Director of Public Prosecutions.

ACT assistance animals framework

About the framework

On 1 July 2020, the ACT commenced a voluntary scheme for people with disability, which promotes, protects and clarifies the existing rights that people with assistance animals already have. The framework does not create any new rights in relation to existing discrimination laws. Under the framework:

  • People who rely on an assistance animal to alleviate the effects of a disability can have their assistance animal tested accredited, registered, and be given an assistance animal ID card for a period of up to two years.
  • Assistance animals can be accredited by an assistance animal trainer, if the trainer is satisfied that the animal has completed training required under the assistance animal standard.

In the future, it is expected that Domestic Animal Services will also be able to accredit assistance animals, if they are satisfied that the animal has the training, hygiene and behaviour that meets the assistance animal standard.

The accreditation and registration process will vary, depending on whether or not your assistance animal has already been accredited by a recognised organisation or another state or territory accreditation scheme.

Assistance animals standards

The Domestic Animals (Accredited Assistance Animal Public Access Standards) Determination 2020 sets out the minimum standard of training, behaviour and hygiene required for assistance animals accessing public places in the ACT.

The standards cover:

  • the management, care and welfare of assistance animals, including a health declaration from a registered veterinarian and a demonstrated awareness by the handler of the animal’s toileting routine and stress signals
  • signs of stress in assistance animals and detecting signs of aggression
  • grooming and hygiene of the assistance animal
  • obedience, focus and behaviour of the assistance animal in various modes of transportation and busy public places, and
  • the abilities of the handler/s to manage the assistance animal appropriately and ensure effective control at all times.

The Domestic Animals (Assistance Animal Accreditation) Guidelines 2020 provide guidelines for the accreditation of assistance animals in the ACT.

Should I apply to have my assistance animal accredited under the framework?

An assistance animal does not need to be accredited under a government scheme or by a prescribed training organisation to meet the definition of an assistance animal under the Discrimination Act or Disability Discrimination Act.

However, although a person can train an assistance animal themselves, to avoid a dispute as to whether an animal is an assistance animal, it is often more practical to have an assistance animal accredited under a government framework, or by a recognised organisation, trainer or assessor.

For further information on the ACT assistance animal accreditation framework, including how to have your assistance animal registered and accredited, as well as a list of registered trainers and assessors and recognised organisations, visit: ACT City Services.

Useful Contacts

Disability Discrimination Law

Located at Canberra Community Law, Level 1, 21 Barry Drive Turner (Cnr Watson Street & Barry Drive) – ground floor meeting rooms available.

You can speak to a solicitor by calling 02 6218 7900.

If you need an interpreter please call the Translating and Interpreting Service on 131 450 and ask them to ring us.

If you are deaf or have a hearing or speech impairment contact us through the National Relay Service. For more information visit The National Relay Service webpage.

If you prefer to email please contact us at info@canberracommunitylaw.org.au

Further information available at the Canberra Community Law website

Domestic Animal Services

Phone: 13 22 81
Email: dogcontrol@act.gov.au

ACT Human Rights Commission

Phone: 02 6205 2222
Email: human.rights@act.gov.au

Australian Human Rights Commission

Phone: 1300 656 419
Email: infoservice@humanrights.gov.au

Women’s Legal Centre

Phone: 02 6257 4377
Email: admin@womenslegalact.org
Further information visit the Women’s Legal Centre website

Legal Aid ACT

Phone: 1300 654 314
Email: legalaid@legalaidact.org.au
Further information visit the Legal Aid ACT website.

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2. Disability Discrimination Complaints in the Australian Human Rights Commission

What can I do if I am discriminated against because of my disability in the ACT?

If you have been discriminated against because of your disability in the ACT you can make a complaint to the ACT Human Rights Commission under the Discrimination Act 1991 (ACT) or to the Australian Human Rights Commission (AHRC) under the Disability Discrimination Act 1992 (Cth) (DDA).

You should consider a number of factors in deciding which commission to complain to.  You should seek legal advice to make this decision.  You can seek free legal advice at the legal services listed below.

You should refer to this Fact Sheet when making a complaint to the AHRC.  If you decide to make a complaint to the ACT Human Rights Commission, please see our Fact Sheet “Disability Discrimination Complaints in the ACT Human Rights Commission”.

What is a disability?

Disability is broadly defined in the DDA and includes physical, intellectual, and mental illness disabilities.

Disabilities that you have now, have had in the past, may have in the future or are believed to have are generally covered.

Can I make a complaint?

You can make a complaint if:

  • You have been discriminated against because of your disability; or
  • You are an associate of a person with a disability (including a family member, friend or carer) and you have been discriminated against because of this association; or
  • You have an assistance animal, a carer, an assistant or a disability aid and have been discriminated against because of this.

What is disability discrimination?

There are two types of discrimination that are unlawful under the DDA:

  • Direct discrimination and
  • Indirect discrimination.

What is direct disability discrimination?

Direct disability discrimination is when you are treated less favourably because of your disability than another person without the disability would have been treated in similar circumstances.

You must be able to show that the person or organisation was aware of your disability and treated you the way they did because of your disability.  It is not enough to show that you have a disability and believe that that is the reason for how you were treated.

You can also make a complaint about direct disability discrimination if another person or organisation has failed to make reasonable adjustments for you and this failure results in less favourable treatment of you than another person without your disability would have received in similar circumstances.

An example of direct disability discrimination is if you are refused service in a shop because you have a speech impediment.

What is indirect disability discrimination?

You can make a complaint about indirect discrimination if a person or organisation imposes an unreasonable condition or requirement which you cannot meet because of your disability and which has the effect of disadvantaging people with your disability.

An example of indirect discrimination is if your employer has a rule that people not keep food at their desks and you are diabetic and need immediate access to food while at work. This rule has the effect of disadvantaging people who are diabetic.

What is a reasonable adjustment?

A reasonable adjustment is a necessary modification so that you can participate in or access something equally to someone without your disability.

An example of a reasonable adjustment is an employer providing you screen reading software if you are blind.

Where must the disability discrimination have occurred? 

If you want to make a complaint about an incident of disability discrimination, it needs to have happened in an area of ‘public life’ specified in the DDA. These areas include: employment; education; the provision of goods, services and facilities; access to premises; and accommodation.

If you are unsure about whether the area in which you experienced discrimination is covered, you should seek legal advice.  You can seek free legal advice at the legal services listed below.

When can disability discrimination be lawful? 

You can be discriminated against lawfully if a person or organisation would experience ‘unjustifiable hardship’ in avoiding the discrimination.

Unjustifiable hardship involves a number of factors including:

  • The nature of the benefit or detriment for all of the people concerned;
  • The effect of the disability;
  • The cost to the person or organisation taking discriminatory action of avoiding discrimination; and
  • The availability of financial assistance to the person or organisation involved such as through the Australian Government’s Employment Assistance Fund.

You can also be discriminated against lawfully by your employer if:

  • You are unable to carry out the inherent requirements of the work even if the employer made reasonable adjustments for you; or
  • Avoiding the discrimination would impose unjustifiable hardship on the employer.

How do I make a Disability Discrimination Complaint?  

You need to make your complaint in writing.  You should write down what happened, when and where it happened and who was involved.

You can download a complaint form from the AHRC website at https://www.humanrights.gov.au/complaints/make-complaint or you can contact the AHRC to get one.

You can fill in the complaint form and post, fax or lodge it online. If you are unable to put the complaint in writing, the AHRC can help you with this.

You do not need a lawyer to make a complaint but it can help to discuss your complaint with a lawyer before you lodge it so that you are sure that you have included all relevant information.

A complaint can be made in any language. If you need a translator or interpreter, the AHRC can usually arrange this for you.

Is there a time limit for making a complaint?

You should generally make a complaint within 6 months of the discrimination but the AHRC can accept older complaints in certain circumstances.  You should seek legal advice in this situation.  You can seek free legal advice at the legal services listed below.

Does it cost anything to make a disability discrimination complaint? 

You do not have to pay a fee to make a disability discrimination complaint to the AHRC.

How does the AHRC deal with complaints?

The AHRC will decide whether to accept or reject your complaint.  If the AHRC decides to accept your complaint it will usually contact the person or organisation complained about and will invite them to respond.

After receiving the response, the AHRC may recommend conciliation.

What is conciliation? 

Conciliation is a meeting between you and the person or organisation you have complained about. The meeting attempts to resolve the complaint with the assistance of a conciliator from the AHRC.

The conciliator will meet with you and the person or organisation complained about individually before the conciliation to make sure that everyone is clear about the aim of the conciliation.

You and the person or organisation complained about may each bring an advocate, lawyer or support person with you if the AHRC agrees.

The conciliator does not take sides and makes sure that each side can put across their point of view. The conciliator does not push a recommended way of settling the complaint but can suggest ideas for both sides to consider.

Conciliation is private and confidential.

What happens if an agreement is reached at the conciliation? 

Conciliation can be resolved in a number of ways such as the person or organisation complained about providing an apology, compensation or a policy change in response to what happened.

If an agreement is reached, it is generally put in writing and signed by both sides.

What happens if the complaint is not resolved by the AHRC?

If an agreement cannot be reached, the AHRC will terminate the complaint.  In certain circumstances, you then have 60 days to make an application to the Federal Court or the Federal Circuit Court for the court to make a decision about what happened.

You should seek legal advice before making an application to a court.   You can seek free legal advice at the legal services listed below.  You will have to pay filing fees and hearing fees for a court application although you can apply to have them waived if you are in financial hardship.  You may also have to pay the other side’s costs if you lose the case.

Useful Contacts and Information:

Disability Discrimination Law

  • Located at Canberra Community Law, Level 1, 21 Barry Drive Turner ACT 2612
  • You can speak to a solicitor by calling  (02) 6218 7900
  • If you need an interpreter please call the Translating and Interpreting Service on 131 450 and ask them to ring us
  • If you are deaf or have a hearing or speech impairment contact us through the National Relay Service.  For more information visit www.relayservice.gov.au
  • If you prefer to email please contact us at info@canberracommunitylaw.org.au
  • Further information: https://canberracommunitylaw.org.au

Women’s Legal Centre

  • The Centre offers free telephone advice from Monday to Friday 9.30am to 12.00 noon
  • Telephone from Canberra: (02) 6257 4499, Telephone from outside Canberra: 1800 634 669
  • Further information: http://womenslegalact.org/

Legal Aid 

  • 2 Allsop Street Canberra City ACT 2601
  • Phone:1300 654 314 from 8.30am to 5pm, Monday to Friday
  • Further information: www.legalaidact.org.au

Law Society Legal Advice Bureau

Australian Human Rights Commission

Disclaimer

This Fact Sheet contains general information available at the time of printing.  It does not constitute legal advice.  If you have a specific legal problem, please contact the Disability Discrimination Law Advice Line on 6218 7900.

February 2019

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1. Disability Discrimination Complaints in the ACT Human Rights Commission

What can I do if I am discriminated against because of my disability in the ACT?

If you have been discriminated against because of your disability in the ACT you can make a complaint to the ACT Human Rights Commission (ACTHRC) under the Discrimination Act 1991 (ACT) (Discrimination Act) or to the Australian Human Rights Commission under the Disability Discrimination Act 1992 (Cth).

You should consider a number of factors in deciding which commission to complain to. You should seek legal advice to make this decision. You can seek free legal advice at the legal services listed below.

You should refer to this Fact Sheet when making a complaint to the ACTHRC. If you decide to make a complaint to the Australian Human Rights Commission, please see our Fact Sheet “Disability Discrimination Complaints in the Australian Human Rights Commission”.

What is a disability?

Disability is broadly defined in the Discrimination Act and includes physical, intellectual, and mental illness disabilities.

Disabilities that you have now, have had in the past, may have in the future or are believed to have are generally covered.

Can I make a complaint?

You can make a complaint if:

  • You have been discriminated against because of your disability; or
  • You are an associate of a person with a disability (including a family member, friend or carer) and you have been discriminated against because of this association; or
  • You have an assistance animal, a support person or a disability aid and have been discriminated against because of this.

What is disability discrimination?

There are two types of discrimination that are unlawful under the Discrimination Act:

  • Direct discrimination and
  • Indirect discrimination.

What is direct disability discrimination?

Direct disability discrimination is when you are treated unfavourably because of your disability.

You must be able to show that the person or organisation that treated you unfavourably was aware of your disability and treated you that way because of your disability. It is not enough to show that you have a disability and believe that that is the reason for how you were treated.

You can also make a complaint about direct disability discrimination if another person or organisation has failed to make reasonable adjustments for you and this failure results in unfavourable treatment because of your disability.

An example of direct disability discrimination is if you are refused service in a shop because you have a speech impediment.

What is indirect disability discrimination?

You can make a complaint about indirect discrimination if a person or organisation imposes an unreasonable condition or requirement which has the effect of disadvantaging you because of your disability.

An example of indirect discrimination is if your employer has a rule that people not keep food at their desks and you are diabetic and need immediate access to food while at work.

What is a reasonable adjustment?

A reasonable adjustment is a necessary modification so that you can participate in or access something equally to someone without your disability.

An example of a reasonable adjustment is an employer providing you screen reading software if you are blind.

Where must the disability discrimination have occurred?

If you want to make a complaint about an incident of disability discrimination, it needs to have happened in an area of ‘public life’ specified in the Discrimination Act. These areas include: employment; education; the provision of goods, services and facilities; access to premises; and accommodation.

If you are unsure about whether the area in which you experienced discrimination is covered, you should seek legal advice. You can seek free legal advice at the legal services listed below.

When can disability discrimination be lawful?

You can be discriminated against lawfully if a person or organisation would experience ‘unjustifiable hardship’ in avoiding the discrimination.

Unjustifiable hardship involves a number of factors including – the nature of the benefit or detriment for all of the people concerned, the nature of the disability and the cost to the person or organisation taking discriminatory action of avoiding discrimination.

You can also be discriminated against lawfully by your employer if they believe on reasonable grounds that because of your disability:

  • You are unable to carry out the essential requirements of the work; or
  • You require reasonable adjustments to carry out the work and providing these would impose unjustifiable hardship on the employer.

How do I make a Disability Discrimination Complaint?

You need to make your complaint in writing. You should write down what happened, when and where it happened and who was involved.

You can download a complaint form from the ACTHRC website or contact the ACTHRC to get one.

You can fill in the complaint form and post, fax or lodge it online or in person. If you are unable to put the complaint in writing, the ACTHRC can help you with this.

You do not need a lawyer to make a complaint but it can help to discuss your complaint with a lawyer before you lodge it so that you are sure that you have included all relevant information.

A complaint can be made in any language. If you need a translator or interpreter, the ACTHRC can usually arrange this for you.

Is there a time limit for making a complaint?

You should generally make a complaint within two years of the discrimination but the ACTHRC can accept older complaints in certain circumstances. You should seek legal advice in this situation. You can seek free legal advice at the legal services listed below.

Does it cost anything to make a disability discrimination complaint?

You do not have to pay a fee to make a disability discrimination complaint to the ACTHRC.

How does the ACTHRC deal with complaints?

The ACTHRC will decide whether your complaint raises issues under the Discrimination Act or not.

If the ACTHRC decides that your complaint raises issues under the Discrimination Act, it will usually contact the person or organisation complained about and will invite them to respond.

After receiving the response, the ACTHRC may recommend conciliation.

What is conciliation?

Conciliation is a meeting between you and the person or organisation you have complained about. The meeting attempts to resolve the complaint with the assistance of a conciliator from the ACTHRC.

The conciliator will meet with you and the person or organisation complained about individually before the conciliation to make sure that everyone is clear about the aim of the conciliation.

You and the person or organisation complained about may each bring an advocate, lawyer or support person with you if the ACTHRC agrees.

The conciliator does not take sides and makes sure that each side can put across their point of view. The conciliator does not push a recommended way of settling the complaint but can suggest ideas for both sides to consider.

Conciliation is private and confidential.

What happens if an agreement is reached at the conciliation?

Conciliation can be resolved in a number of ways such as the person or organisation complained about providing an apology, compensation or a policy change in response to what happened.

If an agreement is reached, it is generally put in writing, signed by both sides and registered at the Australian Capital Territory Civil and Administrative Tribunal (ACAT).

Either side can ask the ACAT to enforce a conciliation agreement if they believe the other side has not kept the agreement.

What happens if the complaint is not resolved by the ACTHRC?

If an agreement cannot be reached, the ACTHRC will write to you and ask you to advise them within 60 days if you want the complaint referred to ACAT to make a decision about what happened. You do not have to pay a fee to have your complaint referred to ACAT. However, if you lose your case at ACAT you may have to pay the other side’s legal costs. You should seek legal advice before asking for your complaint to be referred to ACAT. You can seek free legal advice from the legal services listed below.

Useful Contacts and Information:

Disability Discrimination Law

  • Located at Canberra Community Law, Level 1, 21 Barry Drive Turner ACT 2612
  • You can speak to a solicitor by calling  (02) 6218 7900
  • If you need an interpreter please call the Translating and Interpreting Service on 131 450 and ask them to ring us
  • If you are deaf or have a hearing or speech impairment contact us through the National Relay Service.  For more information visit www.relayservice.gov.au
  • If you prefer to email please contact us at info@canberracommunitylaw.org.au
  • Further information: https://canberracommunitylaw.org.au

Women’s Legal Centre

  • The Centre offers free telephone advice from Monday to Friday 9.30am to 12.00 noon
  • Telephone from Canberra: (02) 6257 4499, Telephone from outside Canberra: 1800 634 669
  • Further information: http://womenslegalact.org/

Legal Aid 

  • 2 Allsop Street Canberra City ACT 2601
  • Phone:1300 654 314 from 8.30am to 5pm, Monday to Friday
  • Further information: www.legalaidact.org.au

Law Society Legal Advice Bureau

ACT Human Rights Commission

Disclaimer

This Fact Sheet contains general information available at the time of printing.  It does not constitute legal advice.  If you have a specific legal problem, please contact the Disability Discrimination Law Advice Line on 6218 7900.

February 2019

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