What is a Disability?
Under the NSW Anti-Discrimination Act 1977 (the Act), it is unlawful to discriminate against a person on the ground of disability.
It is important for PCBUs to be aware of this part of the Act, because it may affect the way in which they decide to carry out their obligations under the WHS laws, especially in relation to managing the risk of psychosocial hazards in the workplace.
The focus of this article is on that part of the Act which overlaps with those WHS laws that apply to managing the risk of psychosocial hazards.
Under the Act, a disability is defined¹ as being:
a total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or
the presence in a person’s body of organisms causing or capable of causing disease or illness, or
the malfunction, malformation or disfigurement of a part of a person’s body, or
a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
The Act is not confined to a current disability², it also applies to a disability that a person:
has, or
is thought to have (whether or not the person in fact has the disability), or
had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
¹Section 4
²49A Disability includes past, future and presumed disability