MHCC Mental Health Rights Manual

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Chapter 7 Section B: The right to equality

This section of the Manual deals with your right to equality, and to not be discriminated against because of your mental health condition or because of another personal characteristic, including: 

  • your gender, i.e., whether your are a man or a woman;
  • your marital status, i.e., whether or not you are married;
  • your sexual preference;
  • your racial background;
  • your age;
  • your responsibility for the care of others.

You can find out more about these other types of discrimination from the Australian Human Rights Commission by clicking here,

and, in NSW, from the Anti-Discrimination Board by clicking here.

In this section of the Manual, you can read about:

7B.1: Laws against discrimination because of mental health conditions

Australia and NSW have a range of laws that protect people from being discriminated against because of a mental health condition (among other things). These are usually called anti-discrimination laws. Anti-discrimination laws across Australia deal with mental health conditions as a disability. The term disability is defined in all anti-discrimination laws in similar terms.

The two laws that are most relevant to people with mental health conditions in NSW are:

There are similar laws in each state and territory, some are called anti-discrimination laws, others are called equal opportunity laws.

These laws make it unlawful to discriminate against a person because they have a mental health condition in a range of areas of life. 

Both of these laws (and other laws prohibiting discrimination on the basis of disability) deal with two main forms of discrimination:

Direct discrimination - which is when you are treated worse than other people because of your mental illness. An example of direct discrimination would be if you were refused enrolment in an education course because you have a mental illness, or are refused insurance cover because of a history of mental illness.                                                                                                                              

Indirect discrimination - which is when there is a rule, term or condition that is applied generally but which has the effect of excluding a person with a mental illness because of their illness. An example of indirect discrimination would be if an accommodation service had a rule that all residents have to have vacated their room by 8:00am each morning and you have serious difficulty doing this because you are on medication that makes it difficult for you to get up early enough in the morning.

It is also unlawful discrimination to fail to make a reasonable adjustment for a person with a disability.

7B.1.1: Anti-Discrimination Act 1977 (NSW)

The Anti-Discrimination Act 1977 is a law that applies to things that happen in NSW, whether or not you are from NSW. It sets out what is unlawful discrimination, who is protected against discrimination, the process for asserting your rights under the Act and what outcomes you can get from the legal process.

The Anti-Discrimination Board of NSW is responsible for dealing with complaints of discrimination under the Anti-Discrimination Act 1977 (NSW).

The Administrative Decisions Tribunal deals with complaints of discrimination that can't be resolved through the Anti-Discrimination Board's conciliation process.

For information about the process for making a complaint under the Anti-Discrimination Act 1977 (NSW) and what happens with these complaints, click here.

7B.1.2: Disability Discrimination Act 1992 (Cth)

The Disability Discrimination Act 1992 is an Australian federal (or Commonwealth) law that applies to things that happen anywhere in Australia, whether or not you are from Australia. It sets out what is unlawful discrimination, who is protected against discrimination, the process for asserting your rights under the Act and what outcomes you can get from the legal process.

The Australian Human Rights Commission is responsible for dealing with complaints of discrimination under the Disability Discrimination Act 1992 (Cth).

The Federal Court or Federal Magistrates Court deal with complaints of discrimination that can't be resolved through the Australian Human Rights Commission's conciliation process.

For information about the process for making a complaint under the Disability Discrimination Act 1992 (Cth) and what happens with these complaints, click here.

7B.1.3: Discrimination laws in other states and territories

For more information about your rights under the anti-discrimination laws of other states and territories, check the following links:

Australian Capital Territory
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia

7B.1.4: What is a 'disability' under anti-discrimination law?

Disability is defined in section 4 of the Disability Discrimination Act 1992 (Cth) and in section 4 of the Anti-Discrimination Act 1977 (NSW). The definition in both Acts is very similar. This is the definition in the Anti-Discrimination Act 1977 (NSW):

disability means:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or
(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person's body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour.

This definition includes mental illnesses under (e).

These laws also say that you don't have to have the disability at the time of the discrimination for the way you are treated to be unlawful. So, the laws says that the disability can be one that:

  • 'presently exists';
  • 'previously existed but no longer exists': for example you may have had an episode of mental illness several years ago, but have been well ever since;
  • 'may exist in the future': for example, an insurance company might decide that you are likely to develop a condition based on your previous medical history or the medical history of your parents;
  • 'is imputed to a person': for example, an employer might believe you have a mental illness because of the way you responded to a particularly stressful situation even though you don't have that illness.

The point of discrimination law is to stop you being treated worse or being excluded from opportunities because you have a disability or someone believes you have a disability.

For more about who is protected against discrimination under the Disability Discrimination Act 1992 (Cth), click here.

7B.2: Areas covered in anti-discrimination law

Discrimination is against the law if it happens in any of the following 'areas of life' (click on the link for more information):

For examples of what these different areas of life might include, click here.

Under anti-discrimination laws, you can also make a complaint that another person has harassed you.

Click here to find information about harassment complaints under NSW anti-discrimination law.

7B.3: Getting legal advice and help

If you think you have been discriminated against because of disability (including mental illness), you should get legal advice. You can get free legal advice about discrimination law from:

There is a specialist Community Legal Centre that deals with disability discrimination law in NSW: the NSW Disability Discrimination Legal Centre. For more about this Centre, click here .

 DISCLAIMER

  • The legal and other information contained in this Section is up to date to 30 January 2015
  • This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW) - unless it states otherwise.
  • MHCC does not guarantee the accuracy nor is responsible for the content or the currency of the content of external documents and websites linked to this Manual.