1. National Hepatitis C Anti-discrimination Project
Anti-discrimination Advocacy Training
Sydney, 9th May 2003

2. Program outline What NSW and federal anti-discrimination laws cover
When is it against the law to discriminate
How to make a complaint
What happens once a complaint is made
Options for action

3. Scenario
A man and his son are involved in a head on collision. The son is badly injured.
At hospital the surgeon looks at the boy and says “I can’t perform this operation. That’s my son.”
How can this be?

4. NSW anti-discrimination laws
Anti Discrimination Act 1991 (ADA)
ADA administered by the Anti Discrimination Board of NSW (ADB)

5. Federal anti-discrimination laws
Disability Discrimination Act 1992 (DDA)
DDA administered by the Human Rights & Equal Opportunity Commission (HREOC)
There are also federal laws that cover race and sex discrimination

6. What do The ADB and HREOC do?
Provide information & advice about people’s rights under anti-discrimination laws

7. What do the ADB and HREOC do?
Investigate and conciliate complaints
Educate people about their rights and obligations under anti-discrimination laws
Advocate to improve protection provided by anti-discrimination laws

8. Getting information early
Talk to the ADB or HREOC enquiry services early on
Helping people find out about their rights isn’t just about making a complaint
People need to know about their rights and where to get information
This can makes it easier to resolve problems early on, without needing to make an anti-discrimination complaint

9. What next?
What does ‘discrimination’ mean under anti-discrimination law?
In what circumstances is it against the law to discriminate? (areas)

10. What is discrimination?
Sometimes discrimination is obvious, sometimes it’s harder to identify
Discrimination can be either ‘direct’ or ‘indirect’

11. Direct discrimination
Direct discrimination occurs where a person with hepatitis C is treated ‘less favourably’, in similar circumstances, than a person who does not have hepatitis C

12. Direct discrimination
Marco attended an emergency department with a badly broken ankle.
When he told the surgeon that he had hepatitis C, she refused to treat him.

13. Indirect discrimination
An unreasonable requirement or condition is imposed, which people who does not have hepatitis C could comply with and people with hepatitis C cannot.

14. Indirect discrimination
Bob decides that his employees can have an extra day off per year, if they donate blood to the local hospital twice each year.
This looks fair because it is offered to all employees, if they agree to donate blood.
But the benefit is conditional upon being able to donate blood.
One of Bob’s employees, Jackie, has hepatitis C and can’t donate blood, so she can’t benefit.

15. Indirect discrimination
It unlikely that the condition would be considered reasonable.
People with hepatitis C can’t donate blood for a good reason - so that hepatitis C won’t be transmitted through the blood supply.
But Jackie shouldn’t be denied the same benefits as other employees just because she can’t donate blood.

16. Disability discrimination
The ADA and the DDA make it unlawful to discriminate against a person with a disability
Includes - current, future, past or assumed disability

17. Hepatitis C discrimination
The ADA & DDA definition of disability both cover:
people with hepatitis C
people assumed to have hepatitis C
people who are discriminated against because of their association with a person with hepatitis C

18. Drug dependence discrimination
It is common for people to be discriminated against because they use illicit drugs, have done in past or are assumed to do so
The law is unclear about whether drug dependence is a ‘disability’
Discrimination on the basis of a person’s actual, assumed or past drug dependence may amount to disability discrimination

19. Case study: facts Mark had been employed as a store man for 3 years
He told a friend at work that he occasionally injects speed
Somehow Mark’s boss found out
Mark was sacked

20. Case study: analysis
If Mark’s drug use was not effecting his ability to do his job, this may be amount to disability discrimination
Mark would need to prove that he was discriminated against because his boss assumed that he had a disability (i.e that he was drug dependant)
If his boss sacked him because he assumed Mark had hepatitis C, this would be covered by anti-discrimination laws

21. When is discrimination unlawful?
Discrimination is prohibited in many areas of public life
Anti-discrimination laws do not cover things said or done in private e.g excluded by family

22. Discrimination is against the law:
at work
by employment agencies
in provision of goods & services
in educational settings
by registered clubs
providing accommodation
by qualifying bodies e.g bodies which authorise the practice of a profession or trade

23. Discrimination in employment
Includes applicants for jobs
e.g: refusing to employ a person with hepatitis C

24. Discrimination in employment
Includes employees, contract workers, partnerships
Examples:
denied promotions or training opportunities
dismissed from employment
harassed at work

25. Pre-employment medicals
An employer has the right to ask a person to undertake a pre-employment medical assessment
But only if necessary to assess if the person can do the essential requirements of the particular job
In most cases having hepatitis C will not be relevant to a person’s ability to do most jobs
In rare cases, such as jobs which involve exposure prone procedures, a person’s hepatitis C status may be relevant

26. Case study: Dentist
Janis is seeking another dentist to work in her dental clinic
An essential requirement of the job is being able to undertake exposure prone procedures safely
After interviewing three people, Janis decides her preferred candidate is Ian
Janis ask Ian to undergo a pre-employment medical to make sure he can do the essential requirements of the job

27. Pre-employment medicals
If a pre-employment medical is:
required
assessment discloses that person has hepatitis C
having hepatitis C is not relevant to the person’s ability to do the job
person is not offered the job
then this may be discrimination

28. Discrimination can be:
Goods and services
Discrimination can be:
refusing to provide the goods or service
making it more difficult to get the goods or services e.g making a person wait longer because they hepatitis C

29. Goods & services
discriminating in the way in which the service is provided e.g harassing the person in the course of providing a service

30. Harassment Harassment is a type of discrimination
Harassment is any conduct that is humiliating, offensive, intimidating, insulting or ridiculing
Covered by ADA & DDA when in areas covered by the laws e.g work, services, clubs etc

31. Requesting information
It against the law to ask a person for information on which discrimination may be based (DDA only)
Example: dentist asks for disclosure on patient forms

32. Requesting information
It may not be discriminatory to ask for the information if the person seeking it can show they needed the information for a reason that was not discriminatory
Example: An insurer can ask for information about a person’s health if a person is seeking life insurance
The insurer requires this information to decide how much of a risk there is that the person will get sick the future

33. Victimisation
It is against the law to victimise (treat someone unfairly) because they have said that they might make a complaint of discrimination or because they have made a complaint of discrimination

34. When is it lawful to discriminate?
Generally, discriminating against a person because they have hepatitis C is against the law in many areas of public life
BUT, there are exceptions to the rule
Some are particularly relevant to hepatitis C related discrimination

35. Public health exception
It is lawful to discriminate against a person with hepatitis C if it is necessary to protect public health
Example - excluding people with hepatitis C from donating blood is necessary to protect the blood supply
But it is rarely necessary to discriminate in order to protect public health

36. Case study: facts David works in a childcare centre
His boss Lauren recently gave him an excellent performance review
But two weeks later, Lauren found out David had hepatitis C
David was sacked from his job
The childcare centre management say that it was necessary to discriminate against David in order to protect health and safety of the children

37. Case study: conclusions
Such an argument would be unlikely to succeed
The best way to protect the public health is to make sure that standard infection control practices are always followed
This ensures health and safety of workers and the public

38. Insurance exception
It is lawful for an insurer to discriminate against a person with hepatitis C if:
the discrimination is based on relevant research (known as actuarial and statistical data) or
where such relevant data is not available, the discrimination is reasonable in the circumstances

39. Insurance exception: rationale
Insurance is commercial activity
Insurers are entitled to determine how risky it is to insure the person
Insurers must assess whether the person is more likely to make a claim based on research and medical evidence
Usually it will be against the law to have a policy of refusing everyone with hepatitis C

40. Drug dependence exception
It is lawful to discriminate against a person on the basis that they are addicted to an illegal drug
Only applies to discrimination in employment
Only under the ADA (NSW)

41. Drug dependence exception
To reply on this exception the employer would need to show the person was actually addicted, not just using drugs
No equivalent exception exists in the DDA
Therefore, under the DDA it may be unlawful to discriminate against a person based on their actual, past or assumed drug dependence

42. Education exception Under the ADA, private schools are not covered
They are covered by the DDA
So if a person in NSW wants to make a complain about a private school, they should go to HREOC

43. Is this against the law? quiz
Is it unlawful conduct:
direct or indirect discrimination
harassment
victimisation
requesting information to discriminate
Is it because of the person's hepatitis C or assumed hepatitis C?
Is it in public life – covered by an area such as employment, goods & services, clubs etc?

44. Problem solving
Options for action
Case study discussion

45. Why complain? Improves self esteem Can result in changing attitudes
Can lead to changes in the practices and policies that can benefit other service users

46. Making a complaint
Get information and advice before making a complaint
People need to decide what option is best in their situation e.g anti-discrimination, privacy, health care complaints, unfair dismissal
If a person decides to make an anti-discrimination, it’s important to get advice about whether to make their complaint under the ADA (NSW) or the DDA (federal) laws

47. Differences between ADA & DDA
The ADA covers disability and other forms of discrimination including sex, race, homosexuality etc
The DDA only covers disability discrimination
There are also differences in:
areas of public life covered
the exceptions
time limits
delays in complaints handling
cost of going to court

48. Must use the DDA
Legal advice is also important because there are some types of complaints which must be made under the DDA
Example:
commonwealth employees
life and disability insurance

49. Getting legal advice Disability Discrimination Legal Centre
Legal Aid Commission
Law Access

50. Thinking about making a complaint
Talk to ADB or HREOC before complaining
telephone enquiries services
9 – 5 weekdays

51. How to make a complaint A complaint must be in writing
Can use standard form provided by ADB & HREOC

52. Time limits Complaints to the ADB under the ADA = 6 months
Complaints to HREOC under the DDA = 12 months

53. Lodging a complaint ADB and HREOC accept complaints by post
HREOC will also accept complaints by

54. Who is who in the process?
Complainant = the person making the complaint
Respondent = person or organisation against whom the complaint is made
Conciliation officer = the person handling the complaint

55. Assessment
ADB or HREOC will look at whether the complaint is covered by anti-discrimination laws they administer
If a complaint is made outside the time limit, they’ll consider whether the person has provided good reasons for the delay
May ask for more information

56. Assessment
Decide whether to accept complaint or terminate the complaint
If the complaint is accepted, the ADB or HREOC will investigate the complaint

57. Investigation
Complaint will be provided to respondent and they will get an opportunity to respond
Reply to complainant and they will get an opportunity to opportunity to respond
Most complaints will referred to conciliation

58. What is conciliation?
a ‘round table’ structured discussion between complainant and respondent
lead by an independent conciliator

59. About conciliation Conciliation conference are compulsory
Anything said in conciliation is confidential
Need to seek permission to bring a lawyer or support person
Most complaints are resolved without going to court

60. What is the purpose of conciliation?
Allow both parties to tell their side of the story
Assists the parties to discuss options
Assist parties to reach agreement on how best to resolve the complaint

61. Tips on preparing for conciliation
It’s a good idea for complainants to prepare:
a summary of what they want to say
a list of the the issues they think the respondent will raise
an outline of what they want to say in response
get legal advice to help them decide what they might seek to settle your complaint

62. Resolving a complaint Resolutions can include: an apology
getting job back
a reference

63. Resolving a complaint Resolutions can include: access to a service
changing a discriminatory practice or policy
anti-discrimination training for staff of a service or in a workplace
financial compensation

64. If the complaint isn’t resolved?
Complainant will need to decide whether they want to take their complaint to court