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Anti-discrimination law and service providers 

       

    Who is a service provider under anti-discrimination law?

    The definition of goods and services includes:

    • the provision of banking, insurance and the provision of other financial services;

    • the provision of entertainment and recreation services such as pubs, cinemas and nightclubs;

    • the provision of transport or travel services;

    • the professions or trades, such as doctors, dentists, lawyers, plumbers, electricians etc

    • retail outlets;

    • services provided by a government department, government authority or local councils.

    The law defines goods and services very broadly, and it does not matter whether the goods or services an organisation provides are for payment or not. For example the standard of food and accommodation in a prison has been held to be a service. 

    How does the law affect service providers?

    Generally, whether goods or services are provided and the terms and conditions under which they are provided must not relate to a person's:

    • age

    • disability

    • homosexuality

    • marital or domestic status

    • race

    • sex (Including pregnancy and breastfeeding)

    • transgender status

    For example, it would be unlawful to refuse to provide someone with a service because of their race, or to charge women more than men for the same service. 

    Access to your service

    Services need to be accessible to all your clients.

    • People must not be refused a service because they (or their relative or associate) have a guide dog (for seeing, hearing or mobility). All guide dogs must be allowed to accompany their owners, even into eating areas.

    • People must not be refused a service because they (or their relative or associate) use a wheelchair, or have other mobility problems — unless it is physically impossible or dangerous to provide access to the service.

    • People who are deaf or have a hearing impairment can contact you through the National Relay Service​, and you can also use it to communicate with them. Contact the NRS for information on how this service operates.

    • Where appropriate, information should be provided in languages other than English.

    Building access and 'unjustifiable hardship'

    • Steps and slippery floors can make it difficult for customers with mobility difficulties to access buildings.

    • All buildings that people need to access to get to a service, including transport, must generally be accessible, for example by providing ramps, lifts or car spaces for people with disabilities. This is the case unless it would cause the service provider or building owner ‘unjustifiable hardship’ to make the building accessible.

    • In deciding whether a modification would cause ‘unjustifiable hardship’, the service provider or building owner must take into account the benefit that customers would generally receive if the access was improved. For example, ramps may benefit people with mobility difficulties or prams as well as people using wheelchairs. 

    • In many instances, small or less costly changes will improve accessibility without causing ‘unjustifiable hardship'. In these cases, the changes should be made. At the very least, major service providers should have plans for how they are going to make their service accessible in the future.

    • In general, the cost of making new buildings or services accessible from the start will be lower than the cost of remodelling old buildings. So it will probably be harder for the owner of a new building or service to prove ‘unjustifiable hardship'.

     

    Human Rights and Equal Opportunity Commission and Disability Action Plans

    The Human Rights Commission is the Federal government body responsible for anti-discrimination matters. The Commission administers the Disability Discrimination Act (DDA). Under the DDA, an organisation can lodge an action plan to demonstrate how they are eliminating disability discrimination in the provision of goods, services and facilities. This plan can be used as a defence relating to unjustifiable hardship in case a discrimination complaint is lodged with the Commission.

    More information about Disability Action Plans....

    Who is legally responsible?

    In services and businesses, the service or business owners are legally responsible for making sure that anti-discrimination law is followed. If the service or business owners give the responsibility to a manager, they may also share some of the liability for making sure that the law is followed. Therefore it is in the interest of service or business owners and managers to make sure that all staff members abide by anti-discrimination law, so that the business is run fairly and properly.

    Service providers are responsible for harassment or discrimination:

    • by their staff to clients or customers, for example if a business refuses entry to a person because they have a disability;

    • by clients or customers to their staff, for example if a client is rude to a staff member about their race;

    • between their clients or customers, for example if one client sexually harasses another client.

    It may be useful for services to have a policy on acceptable standards of behaviour. This should be displayed in a prominent place so that customers know as soon as they enter the premises that they will be refused service if they breach the standard.

    Other areas covered by the law

    Many of the laws that apply to providing goods and services also apply to:

    • state education

    • accommodation

    • registered clubs.

    State Education

    It is generally against the law to treat people unfairly in anything connected with a public educational authority - for example, in relation to enrolment, during their time at the educational authority, or in relation to their expulsion or exclusion. This includes State government schools, TAFEs, colleges and Universities.

    Unfair treatment by a private school or educational authority will generally be against the law only if it is based on a student's race, or sexual harassment. Complaints of disability discrimination against private schools must be made to the Human Rights and Equal Opportunity Commission.

    The principal of the school or educational authority is generally responsible for ensuring that unfair treatment does not occur, including between students.

    Accommodation

    It is generally against the law for the owner of a property or a real estate agent to treat a person unfairly in relation to renting residential or commercial accommodation. This includes refusing to provide accommodation, the terms and conditions of a lease and evicting a tenant.

    However, it is generally OK for people offering share accommodation to choose who they want to live with and therefore discriminate against people because of their age, race, sex etc.

    Both the owner of the accommodation and any real estate agent involved are responsible for ensuring that unlawful discrimination does not occur. A real estate agent cannot escape his or her responsibility under anti-discrimination law by saying that he or she was simply following the wishes of the owner of the property.

    Registered clubs

    It is generally against the law for a person to be treated unfairly by a registered club in relation to eligibility for membership, the terms and conditions of membership and use of the club's facilities. Registered clubs include RSL clubs and some sporting clubs, such as bowling and golf clubs.

    The management of the club will generally be legally responsible for any unfair treatment that occurs. It is also against the law for a voluntary club, such as a Rotary Club, to treat a person unfairly on the basis of his or her race, sex or disability. All complaints against voluntary clubs are handled by the Human Rights Commission.​