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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.

You have the right not to be discriminated against because of another personal characteristic, including your:

  • gender or gender identity
  • marital or relationship status
  • sexual preference
  • racial or religious and cultural background
  • age; and/or
  • 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.

You can also read about Good Practice and how to help promote diversity and prevent discrimination in the workplace. Download them individually or as a set.

You can read more about the Anti-Discrimination Board NSW by clicking here.

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

  • Anti-discrimination laws and mental illness
  • What is a disability for the purpose of anti-discrimination law?
  • What laws exist to protect against disability discrimination?
  • What aspects of day-to-day life are covered by disability discrimination laws?
  • Getting advice and assistance with disability discrimination problem

7B.1: Laws against discrimination because of mental illness

Australia, and New South Wales specifically, 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 deal with mental health conditions as a disability. Read on in this section to find out about how the term disability is defined in all anti-discrimination laws.

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

  • Anti-Discrimination Act 1977 (NSW); and
  • Disability Discrimination Act 1992 (Cth).

There are similar laws to the Anti-Discrimination Act 1977 (NSW) 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. These 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 health condition. An example of direct discrimination would be if you were refused enrolment in an education course because you have a mental health condition.

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 health condition because of their condition. 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, but you cannot do 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.

In NSW, both the Commonwealth and NSW anti-discrimination laws apply and generally include the same types of discrimination and areas of life where discrimination can happen. However, there are some differences in the outcomes a person can seek if they are discriminated against, and some differences in which law applies. You can seek legal advice if you are not sure which law applies.

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

The Anti-Discrimination Act 1977 is a state law that applies in 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 cannot 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 cannot 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 in NSW, click here.

7B.1.3: 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.

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 illness under (e).

These laws also say that you do not 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 do not 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 each link for more information):

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 are specialist Community Legal Centres that deals with disability discrimination law in NSW, including:

Updated April 20, 2020