Equality, non-discrimination and reasonable adjustment

Equality duty. A Code duty holder must respect equality before and under the law and provide each person with equal and effective access to Agency information, services, processes, decisions, complaints and remedies.

Non-discrimination. A duty holder must not directly or indirectly discriminate on the basis of disability, a disability-related attribute, conduct that is a symptom or manifestation of disability, use of a carer, assistant, interpreter, assistance animal or disability aid, association with a person with disability, or a need for adjustment.

Denial of adjustment. A failure to make an adjustment required for equal and effective access is discrimination under this Code unless the Agency demonstrates, on the evidence of the particular case, that the adjustment would impose unjustifiable hardship and complies with clause 1.5.8.

Proactive identification of barriers. The Agency must anticipate and remove common barriers through accessible and universally designed services. In an individual matter, a duty holder must ask what the person needs, notice evident barriers and offer adjustments without requiring the person to use a particular legal term.

No unnecessary proof. The Agency must not require a diagnosis, professional report or detailed disclosure merely to establish a need for an ordinary service adjustment where the barrier and requested change are apparent or can reasonably be accepted from the person’s account. Any evidence requested must be relevant, proportionate and no more intrusive than necessary.

Recording and continuity. With the person’s knowledge and subject to consent and privacy law, the Agency must record agreed communication needs and adjustments in a form visible to workers who need the information. The person must not be required to renegotiate an ongoing adjustment at each interaction unless their needs or the relevant circumstances have changed.

Timely implementation. An adjustment must be arranged early enough to make participation effective. If an Agency barrier or delay in arranging an adjustment affects a deadline, appointment, response period or entitlement to be heard, the Agency must preserve the person’s position and provide a reasonable extension or new opportunity.

No charge or disadvantage. A person must not be charged for an adjustment or disadvantaged in priority, credibility, service quality, decision-making, timeframe or access to review because they need or use an adjustment, advocate, interpreter, communication partner, carer, assistant, assistance animal or disability aid.

Considering and refusing an adjustment. The Agency must not refuse a requested adjustment unless an appropriately authorised officer:

1. consults the person about the barrier, desired outcome and possible alternatives;

2. considers the person’s evidence and account, the likely benefit and detriment, available resources and assistance, and the consequences of refusal;

3. determines on specific evidence that the requested adjustment is ineffective, unlawful or would impose unjustifiable hardship;

4. identifies and offers the most effective accessible alternative; and

5. gives accessible written reasons, the evidence relied on, any interim arrangement and available complaint or review rights.

Burden of justification. The Agency bears the burden of establishing that an adjustment would impose unjustifiable hardship or that a requirement or condition that disadvantages people with disability is reasonable in the circumstances.

Intersectional equality and cultural safety. In identifying and removing barriers, the Agency must consider compounded disadvantage and provide culturally safe service, including for First Nations people with disability, people from culturally and linguistically diverse communities, women and gender-diverse people, children and young people, older people, LGBTQIA+ people, people in rural or remote communities and people experiencing poverty, homelessness or family violence.

Systemic accessibility. The Agency must test policies, premises, documents, forms, portals, automated systems, procurement and contact channels for accessibility before implementation and at regular intervals. Universal design does not remove the duty to provide individual adjustments.

Monitoring. The Agency must collect and publish de-identified information sufficient to identify adjustment failures, discriminatory outcomes and unequal service patterns, while protecting privacy and involving people with disability in deciding what should be measured and how findings should be interpreted.