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Executive Summary
Foreword
Shortened forms
Ch 1. Introduction
Ch 2. Methodology
Ch 3. Legal issues
Mental health care system-related legal issues
Adult guardianship
Disability discrimination
Employment
Other areas of discrimination
Occupational health and safety
Criminal legal issues
Housing issues
Social security issues
Consumer issues
Family law issues
Care and protection issues
Victim of crime issues
Summary
Ch 4. Barriers to accessing legal assistance
Ch 5. Participation in the legal system
Ch 6. Non-legal support
Ch 7. Discussion and conclusion
References
Appendices
Acknowledgements
Access to justice and legal needs research program: Terms of reference
Publishing details
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On the edge of justice: the legal needs of people with a mental illness  ( 2006 )  Cite this report

Ch 3. Legal issues

Disability discrimination

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Occupational health and safety


An emerging issue in discrimination law is the interplay between occupational health and safety laws and discrimination laws. A solicitor from PWD argued that following the Purvis decision,55 there appears to be a feeling within the Department of Education, and among some employers, that behavioural issues that might pose an occupational health and safety risk may in turn provide “sufficient grounds to terminate a person’s access to either the benefits of that employment or education, or more … in terms of disability services”.56

This is supported by the Productivity Commission, which recommends that the “Disability Discrimination Act 1992 be amended to include a general duty by employers to make reasonable adjustments”.57 For example, an employer should “work with the individual and put in place prevention approaches … and only where those fail and there is a persistent occupational health and safety risk to then consider termination”.58 Without such a duty, the commission states that discrimination would not be adequately addressed.59

An example of the interplay between discrimination and occupational health and safety is the reported exclusion of people with a mental illness who have complex needs and behaviours from the Supported Accommodation Assistance Program (SAAP). This program is a jointly funded Australian government and state/territory program that provides supported, temporary accommodation to people experiencing homelessness.60 In the Foundation’s No Home, No Justice? report, concerns were raised by stakeholders that people with complex needs (such as mental health and drug and alcohol problems) were being excluded from SAAP services because of concerns for the occupational health and safety of SAAP employees.61

In its inquiry into the exclusion of people with complex needs from SAAP services, the NSW Ombudsman recommended that SAAP services should move away from a “presumption of risk to considered assessment and risk management”, whereby “policies, procedures and practices are inclusive, and that any exclusions be based on considered assessment of the presenting circumstances of individual clients and fair and transparent exiting procedures”.62



Purvis v New South Wales (Department of Education and Training) [2003] HCA 62. This case involved a young boy (who had brain damage and an intellectual disability) who was expelled from his school for violent behaviour. The High Court ruled that a comparison should be made with the treatment of a person without a disability in the same circumstances. The High Court found that the school would have acted in the same manner (expelling a person for such behaviour) if a person did not have a disability.
Consultation with solicitor, PWD, August 2004.
Productivity Commission, Review of the Disability Discrimination Act 1992, Finding 8.1, p. 96.
Consultation with solicitor, PWD, August 2004.
Productivity Commission, Review of the Disability Discrimination Act 1992, p. 193.
Department of Family and Community Services, Supported Accommodation Assistance Program, <http://www.facs.gov.au/internet/facsinternet.nsf/aboutfacs/programs/house-nhs_saap.htm> (accessed October 2005).
S Forell, E McCarron & L Schetzer, No Home, No Justice? The Legal Needs of Homeless People in NSW, Law and Justice Foundation of NSW, Sydney, 2005.
NSW Ombudsman, Assisting Homeless People: The Need to Improve Their Access to Accommodation and Support Services, NSW Ombudsman, Sydney, 2004, p. 14.
55  Purvis v New South Wales (Department of Education and Training) [2003] HCA 62. This case involved a young boy (who had brain damage and an intellectual disability) who was expelled from his school for violent behaviour. The High Court ruled that a comparison should be made with the treatment of a person without a disability in the same circumstances. The High Court found that the school would have acted in the same manner (expelling a person for such behaviour) if a person did not have a disability.
56  Consultation with solicitor, PWD, August 2004.
57  Productivity Commission, Review of the Disability Discrimination Act 1992, Finding 8.1, p. 96.
58  Consultation with solicitor, PWD, August 2004.
59  Productivity Commission, Review of the Disability Discrimination Act 1992, p. 193.
60  Department of Family and Community Services, Supported Accommodation Assistance Program, <http://www.facs.gov.au/internet/facsinternet.nsf/aboutfacs/programs/house-nhs_saap.htm> (accessed October 2005).
61  S Forell, E McCarron & L Schetzer, No Home, No Justice? The Legal Needs of Homeless People in NSW, Law and Justice Foundation of NSW, Sydney, 2005.
62  NSW Ombudsman, Assisting Homeless People: The Need to Improve Their Access to Accommodation and Support Services, NSW Ombudsman, Sydney, 2004, p. 14.


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Karras, M, McCarron, E, Gray, A & Ardasinski, S 2006, On the edge of justice: the legal needs of people with a mental illness in NSW, Law and Justice Foundation of NSW, Sydney