Chapter 1: Legal and human rights obligations

Contents

• What is the Disability Discrimination Act?
• Reasonable adjustments
• The Convention on the Rights of Persons with Disabilities
• What is good practice?
• Universal design
• Keeping up with fast-changing technology

What is the Disability Discrimination Act?

Anti-discrimination laws in all Australian federal, state and territory jurisdictions prohibit discrimination on the basis of disability across many areas of public life.

The Disability Discrimination Act is the federal law that makes discrimination on the ground of disability unlawful in defined areas of public life. It aims to eliminate discrimination, as far as possible, against people with disability.

Under the Disability Discrimination Act, there are two types of unlawful discrimination.

• ‘Direct’ discrimination happens if a person is treated less favourably because of disability.^[2]
  • For example, a social media platform that refuses membership to any person with disability.
• ‘Indirect’ discrimination happens when a person with disability is required to comply with a requirement or condition which they cannot comply with because of their disability and the requirement or condition is not reasonable.^[3]
  • For example, a lift selection panel in a multi-storey building only provides visual directions to indicate which lift should be used.

Who is covered under the Disability Discrimination Act?

The Disability Discrimination Act applies to any disability that a person currently has, once had, may have in future, or is assumed to have.^[4] It also covers people with disability who use disability aids or assistance animals or have the support of a carer. The law also extends to associates, such as friends, family, work colleagues, and support people of a person with disability.^[5]

What is covered by the Disability Discrimination Act?

Under the Disability Discrimination Act, it is against the law to discriminate against a person because of disability in the areas of:

• employment
• education
• access to premises used by the public
• provision of goods, services and facilities
• accommodation
• buying land
• activities of clubs and associations
• sport
• administration of Commonwealth Government laws and programs.

What digital products are covered by the Disability Discrimination Act?

Section 24 of the Disability Discrimination Act specifically relates to the provision of goods, services, and the availability of facilities, whether paid for or free.

It also covers the terms and conditions and the way in which goods and services are provided.

‘Services’ is defined in the Disability Discrimination Act as including:

• banking, insurance, superannuation and the provision of grants, loans, credit or finance
• entertainment, recreation or refreshment
• transport or travel
• telecommunications
• services of the kind provided by the members of any profession or trade
• government services, including those provided by a local government body.^[6]

Any digital good or service created for people to consume, engage with and/or control, should be designed to provide equal access of use by all to reduce the risk of discrimination. These include:

• internet-based technologies, non-internet technologies and systems that use both
• digital content, applications, systems, and services, including self-service kiosks and systems required to complete a task at work
• digital interfaces including physical devices embedded with sensors, software, and other technologies for the purpose of connecting and exchanging data with other devices and systems over the internet.

Reasonable adjustments

It is a requirement under the Disability Discrimination Act to make changes to reduce barriers for people with disability. These are known as ‘reasonable adjustments’. Reasonable adjustments are changes to a process, product or environment that remove barriers for people with disability. This allows people with disability to access goods and services on an equal basis with others.

The Disability Discrimination Act says that a failure to provide ‘reasonable adjustments’ to a person with disability may amount to direct or indirect unlawful discrimination. Reasonable adjustments must be provided so that a person with disability can access goods and services, unless it would impose an unjustifiable hardship on the individual or organisation concerned. Adjustments have to be made both for consumers of goods and services, and for any employees of an organisation that provides goods and services.

The purpose of imposing a duty to make reasonable adjustments is to eliminate discrimination, to the extent possible, by making goods and services safe and accessible for people with disability. The law allows a person with disability to request a reasonable adjustment, as a recognition that not all general accessibility measures will be appropriate for all individuals.

Employers and educational authorities also have an obligation to ensure that they make reasonable adjustments to any digital goods and services they require their staff or students to use. It can create health and safety risks if people with disability are required to use technology that is inaccessible to them. The Australian Government can provide financial assistance for workplace adjustments for people with disability through the Job Access Program.^[7]

What is unjustifiable hardship?

In some circumstances, it may be unreasonable for adjustments to be made if it will place an ‘unjustifiable hardship’ on a person or organisation. For example, an adjustment may cause unjustifiable hardship if it would be far too expensive, difficult, time consuming or cause other hardship to the person or organisation. Unjustifiable hardship is based on an assessment of what is fair and reasonable in the circumstances.

Section 11 of the Disability Discrimination Act provides that all relevant circumstances of a particular case must be taken into account in determining whether a hardship that would be imposed on a person or organisation is unjustifiable. These circumstances include:

• the benefit or detriment of the adjustment for the person with disability, for others with the same disability, for the organisation making the adjustment and/or for the community generally
• the effect of the disability of any person concerned
• an estimate of the cost of making the adjustment bearing in mind the person or organisation’s financial circumstances
• the availability of financial and other assistance to the person or organisation making the adjustment.

Examples of other circumstances that can be considered by a person or organisation when deciding whether an adjustment would cause unjustifiable hardship include:

• a thorough consideration of how an adjustment might be made
• the impact of the disability on a person with that disability if no adjustment is made
• direct discussion with the person requesting an adjustment
• consultation of relevant sources of advice.

It is up to the person or organisation alleging unjustifiable hardship to demonstrate how making the adjustment would result in unjustifiable hardship.

The defence of unjustifiable hardship in the provision of digital goods and services could include factors as:

• the array of national and international standards on digital accessibility that have been in place and updated since 1999
• widespread availability of practical advice from industry experts on creating and or procuring accessible digital goods and services
• growth of mainstream tools that have the capacity to assist in the creation of accessible goods and services
• growth of mainstream devices that include accessibility features as part of the operating system.

The best way to avoid discrimination remains being inclusive by design and accessible by default. These Guidelines are intended to assist in achieving that objective.

The Convention on the Rights of Persons with Disabilities

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is an international human rights treaty that explicitly addresses the rights of persons with disability. The purpose of the CRPD is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Australia ratified the CRPD in 2008, which means that it accepts the obligation to protect and promote the rights of people with disability set out in the CRPD in Australia’s domestic laws and policies. Once a country has ratified the CPRD, they become what is known as a “State Party.”

One of the general principles of the CRPD is non-discrimination. The rights articulated in the CRPD affirm the right of people with disability to be treated on an equal basis with others. In particular, the CRPD places an obligation on governments to ensure people with disability can access digital products and services on an equal basis with others.

All levels of Governments are responsible for meeting Australia’s obligations under the CRPD. However, the whole of society has an active role to play in upholding the rights established by the CRPD and the Government is required to ‘urge’ and ‘encourage’ other sectors.

Article 3 of the CRPD sets out general principles, including non-discrimination and equality of opportunity, and Article 4 sets out general obligations to ‘ensure and promote the full realisation of all human rights and fundamental freedoms without discrimination on the basis of disability’.^[8] The following sub-sections of Article 4 relate to the obligations placed on State Parties to promote the full realisation of rights, in the area of digital accessibility:

• To undertake or promote research and development of universally designed goods, services, equipment and facilities, with the minimum possible adaptation and the least costs;
• To promote universal design in the development of standards and guidelines;
• To promote the development, availability, and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, giving priority to technologies at an affordable cost;
• To provide accessible information about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities.

Article 5 requires that State Parties ‘recognise that all persons are equal before and under the law’ and ‘shall prohibit all discrimination on the basis of disability’.^[9]

Article 9 outlines obligations to ensure people with disability have equal access to places, facilities and services provided to the public. It outlines that State Parties that have ratified the CPRD must take appropriate measures to identify and eliminate barriers to people with disability accessing technology, including by implementing minimum accessibility standards, and promoting the design and development of accessible technology.^[10]

Article 21 requires States Parties to take all appropriate measures to ensure that people with disability can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice.^[11] This includes:

• Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost
• Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities;
• Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disability

Digital accessibility is an enabler of the realisation of all rights outlined in the CRPD, and critical to the enjoyment of civil, political, economic, social, and cultural rights.

What is good practice?

Adopting the principles of Universal Design will help you meet your obligations under the Disability Discrimination Act and the CRPD. Chapter 3 outlines the key technical standards and guidelines which detail the minimum criteria which should be met to avoid the risk of discriminating against people with disability. The following section provides non-technical and general guidance.

Keeping up with fast-changing technology

Technology is developing at a fast pace, with changes happening more rapidly than legislation can keep up with. Fortunately, many mainstream improvements are also beneficial for people with disability. For example:

• Improvements built-in such as
  • Text to speech on mobile devices and computers
  • Speech recognition mobile devices and computers
  • Haptic and audio feedback on mobile devices
• Dark mode on mobile devices
• Settings to ‘reduce motion’
• More home automation devices and smart speakers that can be controlled through smart phones

On the other hand, the increased use of display screens, touch-screens and soft controls on devices and household appliances can introduce challenges to many people with disability if no alternative means of access is provided.

The Australian Human Rights Commission’s 2021 report on Human Rights and Technology identified two issues in particular which are becoming significant; artificial intelligence (AI) and biometric data.

Artificial intelligence (AI)

At the time of publication of these Guidelines, AI is a topic of public debate which includes discussions on how AI is impacting people with disability and digital accessibility. AI is widely used, from generating image descriptions for people who cannot see the images to web page plug-in overlays that allegedly improve the accessibility for people with disability. However, in 2025 AI applications are not sophisticated enough to be reliable in most situations. It is likely that this will continue to be so in the immediate future, though it is expected that there will be improvements over time.

There is a growing recognition that, as in many areas of life, algorithms that underpin technology and AI re-enforce biases and ableist assumptions. This could result in discrimination, for example, when selecting suitable candidates for employment, making equipment purchasing decisions, recommending services, courses of study or participants in any number of community activities.

Algorithms and AI should not be relied upon to enable equal access or to prevent discrimination. It is critical that the data underpinning these systems incorporate data on disability.

Biometrics

Biometric information is increasingly being used to control access to digital products and services. Examples of biometric methods include the use of fingerprints, eye retinal patterns, and voice and face ID. These methods can have a disproportionate impact on some people with disability, who may not be able to provide such information easily or in some cases at all.

Providers of digital goods and services should ensure that products that use biometric methods also have alternative methods of identification and control available for people with disability who cannot use biometric methods.

Robotics

Robotics is another emerging technology which is becoming part of more people’s lives. On the positive side, robot devices are being used in home appliances such as vacuum cleaners and lawn mowers and robotics are being built into medical equipment some of which assist people with disability in everyday life. There is also an emergence of robots as companion ‘toys’ and it is likely that they will soon be a serious option as a guidance and mobility aid.

On the other hand, robots are increasingly replacing humans throughout employment and service provision areas. Many people, including people with disability, are at risk of having their livelihoods impacted as a result.

Endnotes