Lawful discrimination

Special measures

It is lawful for a person with a disability to be treated more favourably than people without that disability. This is necessary when a person has special needs and needs to be provided with something that is usually not given to everyone.

For example it would not be discriminatory for a school specifically set up to cater for Deaf students to decline the enrolment of a student without that particular disability, such as someone who has cerebral palsy, but is not Deaf.

Order of a Court or Tribunal

This means the action or conduct of the person is authorised by an order.

For example, the Family Court or Children’s Court can make an order taking away custody of a child from a parent with a disability because it believes the person is not able to look after the best interests of the child. The court action and that of any person or organisation following the court order is lawful.

Actuarial or statistical data

This refers to insurance. Insurance is essentially a discriminatory business because it is about assumption of risk. Insurance companies will not assume risks that will put their business at risk. They may refuse an application for insurance cover or payment of benefit if they have widely accepted written reports saying that certain types of disability are too much risk for the company to assume.

In the case study below, however, the Victorian Civil and Administrative Tribunal (VCAT) decided against the insurance company because they could not supply acceptable data to back up the relevant exclusionary clause.

Case study 17 – Travel insurance wrongly excluded mental health claims

Ingram v QBE Insurance (Australia) Ltd, 2015, VCAT

Facts: Ella Ingram booked a trip to New York and purchased a trip cancellation insurance policy with QBE. Ahead of her planned departure, Ms Ingram experienced symptoms of depression for the first time and was later diagnosed with and treated for severe depression. Ms Ingram cancelled her trip upon her doctor’s advice. She subsequently claimed compensation from QBE Insurance who rejected her claim on the basis that the travel insurance policy excluded coverage for claims related to mental illness.

Decision: VCAT held that QBE engaged in unlawful discrimination against Ms Ingram and ordered the insurer to pay approximately $4,000, being the value of her cancelled trip, and $15,000 for hurt and humiliation.

Decisions on visa applications and other migration matters

Discriminatory provisions of the Migration Act 1958 are exempt from the Disability Discrimination Act. For example if a migrant is refused permanent residence because of a disability, this is not unlawful discrimination.

Public health

It is lawful to discriminate against a person with an infectious disease if the discrimination is ‘reasonably necessary’ in order to protect public health.