Malta – Equal Opportunities (Persons With Disability) Act

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CHAPTER 413

10th February, 2000 1st October, 2000

ACT I of 2000, as amended by Legal Notice 426 of 2007; and Acts II and XXIV of 2012, and XXIV of 2016.

PART I PRELIMINARY

1. The short title of this Act is Equal Opportunities (Persons with Disability) Act.

2. In this Act, unless the context otherwise requires –

"accommodation" includes residential or business accommodation;

"alteration" means necessary and appropriate modifications and adjustments;

"assistive means" includes any palliative or therapeutic device, any prosthetic apparatus, or any other apparatus or means, including trained animals, that may be required by a person with a disability specifically because of that disability;

“Board” means the Board established by means of article 20A;

"child" means a minor under the care and custody of the natural or adoptive parents, or under the care of foster carers;

"Commission" shall mean the Commission for the Rights of Persons with Disability as established under article 21;

"Commissioner" means the Commissioner for the Rights of Persons with Disability appointed according to article 21, and includes any official duly authorised to act in his name for a specific aim or a category of aims under this Act;

"communication" includes languages, the showing of texts, communication by means of touch, Braille, large font, accessible multimedia as well as communication by means of writing, audio, easy readable format, human or multimedia readers or interpreters, accessible means and formats of communication and technological communication;

"compulsory school age", in relation to a person means the age at which such person is subject to the provisions of the Education Act insofar as these relate to such age;

"contract of service" means an agreement of employment between two persons, or between one person and an association of persons, whether written, oral or implied, whereby the employee shall be under an obligation to render to the employer services for definite hours, be it on a full-time, part-time or temporary basis, at a specified wage, salary, remuneration in kind or any other benefit or privilege, subject to the right of the employer to exercise control, supervision, direction, and any form of disciplinary action, as may be allowed by law, over the employee as to the method of performance of his duties;

"Convention" refers to the United Nations Convention on the Rights of Persons with Disabilities adopted by the General Assembly of the United Nations on the 13th December 2006, and any Optional Protocol together with the Reservations as affirmed and ratified by Malta on the 30th March 2007 and the 9th November 2012 respectively;

"Council" means the Council for the Rights of Persons with Disability as appointed and constituted according to the provisions of article 24;

"disability" means a long-term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder one’s full and effective participation in society on an equal basis with others;

"educational authority" means a body or person administering an educational institution;

"educational institution" means a kindergarten, school, college, university or other institution at which education or training is provided;

"employment" means work under a contract of service;

"employment agency" means any person who, or association of persons that, whether for payment or not, assists persons to find employment or other work or assists employers to find employees or workers, and includes any activity carried out in Malta for the recruitment of persons for employment in Malta or outside Malta;

"family member", in relation to an individual, includes –

  1. the parents;
  2. the spouse or the partner;
  3. a son, daughter, brother or sister aged eighteen years or over;
  4. foster carers; and
  5. a legal tutor or curator, of that individual;

"foster carer" shall have the same definition as provided for under the Foster Care Act;

"harassment" means when a person is exposed to an act, request, or conduct which is not desired, including words, gestures or conduct, the showing or dissemination by any means of written words, images and any other material which may be reasonably considered offensive, humiliating, hostile, degrading or intimidating with regard to that person;

"impairment" in the context of disability, means any loss, restriction or abnormality of psychological, physiological, or anatomical structure or function;

"language" includes any verbal languages, by means of signs, which includes, but does not exclude, the Maltese Sign Language

"mental disorder" shall have the same meaning as that provided for under the Mental Health Act;

"Minister" means the Minister responsible for disability and the development of this sector, and includes any person duly authorised by the relevant Minister to act in his name for a specific act or category of acts under this Act;

"minor" means those persons who have not attained the age of majority as defined under the Civil Code;

"pensionable age", in relation to a person, means any age during which such person is entitled to a pension in respect of retirement under the provisions of the Social Security Act;

"property" includes all existing and new buildings and outdoor areas such as streets, pavements, public paths, beaches and gardens;

"qualified person with a disability" means –

  1. n relation to any employment as is referred to in Title 1 of Part IV of this Act, a person with a disability who is over compulsory school age but has not yet reached pensionable age, and who, with or without any reasonable accommodation in accordance with the aforementioned Title, can perform the essential functions of the employment position that he holds or applies for or can hold or apply for; and
  2. in relation to the provision and use of goods, facilities or services as are referred to in Title 4 of Part IV of this Act, a person with a disability who meets the essential eligibility requirements for the provision and use of such goods, facilities or services or for participation in such programmes or activities as may be provided by any person or body in terms of the aforementioned Part of this Act;

"reasonable accommodation" means necessary alterations not imposing a disproportionate or unjustifiable burden, where needed in a particular case, to ensure to persons with disability the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;

"rights of persons with disability" includes the rights of persons with disability referred to in the United Nations Convention on the Rights of Persons with Disabilities adopted by the General Assembly of the United Nations on the 13th December 2006, and any Optional Protocol together with the Reservations as affirmed and ratified by Malta on the 30th March 2007 and the 9th November 2012 respectively;

"voluntary organisation" shall have the same meaning assigned to it by article 2 of the Voluntary Organisations Act, the committee of which is formed by at least fifty one per cent of persons with disability or family members of persons with disability who cannot represent themselves, so however that the executive functions are exercised by persons with disability or family members of persons with disability who cannot represent themselves. This definition also includes groups of persons with intellectual disabilities aided by persons without disability.

PART II RIGHTS OF PERSONS WITH DISABILITY

3. (1) Every person has an intrinsic right to life, dignity, respect and mental reproductive and physical integrity, and the State shall guarantee this right to persons with disability, both before and after their birth.

(2) Every person has a right to know at the first possible opportunity whether he or she has any disability. Therefore every person has a right to a diagnosis which shows if he or she has any disability. So however that the State has the duty to provide information and an early and comprehensive intervention as well as services and help to children with disability and to their families.

(3) Whoever abandons, hides, segregates, abuses, persecutes and exploits persons with a disability shall be guilty of an offence under this Act.

(4) Every person with a disability shall have the right to family life and upbringing as any other person.

(5) Every person with a disability shall enjoy the same fundamental rights and freedoms of the individual without discrimination as declared in the Constitution of Malta. The State shall ensure that the exercise of such rights is also guaranteed when together with the disability there are also other factors inter alia gender, age, ethnicity, beliefs, skin colour, trade union affiliation and the political belief of the person with disability.

(6) Every person with a disability shall have the right of freedom of expression, opinion and association, including the freedom to search, receive and provide information and ideas on an equal basis with others and by means of any form of communication of his or her choice.

(7) Every person with a disability shall have the right to reach his or her maximum physical, sexual, reproductive, emotional, social, artistic and intellectual capacities.

(8) Every person with a disability shall have the right to take those decisions which affect his or her life and which he or she deems as good for him or her after being aided to do so in the case of a request for help.

(9) Every person with a disability shall have the right to form a family or a civil union, as the case may be, as any other person.

(10) The State shall ensure that no discrimination is exercised against persons with disability with regard to marriage, family, their responsibilities as parents and relationships. In no case shall a parent be separated from his child due to a disability of the child or of any of the parents, or of both parents, and no person with disability shall be separated from his or her family due to his or her disability:

So however that every decision shall be taken in the best interest of the children who have or do not have a disability; and the same interests shall be established by means of a full consultation with the person with disability by a competent authority according to the applicable laws and procedures, subject to a judicial examination where the best interest of the child is to prevail.

(11) The person with disability shall be free to decide with whom to live.

(12) A person with disability shall have access to a range of tools of support, community services and facilities including, but not limited to, personal assistants, technological equipment and mobility aid, to ensure an effective inclusion. Such services shall be available for a reasonable price and the freedom of choice shall pertain to the person with disability. The choice of objects, services and facilities shall reflect the needs and preferences of the person with disability.

(13) The person with disability shall have access to mobility and orientation training, to the Maltese Sign Language, and the use of technological equipment.

(14) The assessment of a person with disability shall be multi- disciplinary and trans-disciplinary and shall reflect the actual needs and the qualities of the person.

PART III DISABILITY DISCRIMINATION

3A. (1) A person discriminates with another person in a multiple manner if apart from the disability there exists discrimination inter alia due to gender, age, civil status, sexual orientation, race, ethnicity, beliefs, skin colour, trade union affiliation or political belief.

(2) A person would be discriminating with another person due to disability if such person inhibits the free thought, social and economic improvement, and the integration in society of that person.

(3) A person would be discriminating with another person due to disability if such person deprives the other person from the protection and rights provided by law.

(4) There is discrimination when a person:

  1. fails to provide full access to a person with disability for all those actions provided by law; or
  2. fails to furnish information with regard to the rights of the other person by means of communication which the other person can understand; or
  3. fails to offer help to the other person in procedures linked to an investigation, the giving of evidence and other similar procedures; or
  4. knowingly limits or by any other act inhibits the enjoyment of any right acquired by the other person both inter vivos or causa mortis:

Provided that the preceding paragraphs include in particular the behaviour listed therein, but without prejudice to the generality of the conduct referred to in this Act and in the Convention.

(5) A person would be discriminating with another person due to that person’s disability if such refers to that other person or addresses him or her in a language which is disrespectful. This applies both to a person with disability in an individual or a collective manner, as well as to persons with a disability, both directly as well as by references on all means of communication, such as, but not limited to, broadcasting, publishing and correspondence.

(6) A person shall be discriminating with another person on the grounds of disability in any circumstances relevant for the purposes of any provision of this Act, if:

  1. in circumstances which are similar or are not materially different, he treats or proposes to treat a person who has a disability less favourably than he treats or would treat a person who does not have such a disability; or
  2. he treats or proposes to treat a person less favourably on the basis of a characteristic that appertains generally to persons who have such a disability or a presumed characteristic that is generally imputed to persons who have such a disability.

(7) For the purposes of sub-article (6)(a), the fact that different accommodation and, or, services may be required by the person with a disability shall in no case be deemed as constituting circumstances which are materially different.

4. A person shall be discriminating against another person on the grounds of disability if such other person is required to comply with a requirement or condition with which the majority of persons who do not have the disability comply or are able to comply, and

  1. which is unreasonable in the circumstances of the case; and
  2. with which such other person does not comply or is unable to comply.

5. (1) on the grounds of disability if he treats or proposes to treat such other person less favourably than he treats or would treat others who do not have such a disability because of the fact that such other person is accompanied by or possesses any assistive means that is used by such other person or because of any matter related to that fact, whether or not it is the practice to treat in such less favourable manner any person who is accompanied by or is in possession of such assistive means.

(2) A person shall be discriminating with another person on the grounds of disability if he subjects such other person to harassment

A person shall be discriminating against another person in any circumstances relevant for the purposes of any provision of this Act:

Provided that any person who harasses another person as provided in this sub-article shall be guilty of an offence against this article and shall, without prejudice to any greater liability under any other law, be liable on conviction to a fine (multa) of not more than two thousand and five hundred euro (€2,500) or to imprisonment for not more than six months or to both such fine and imprisonment.

(3) It shall not be lawful to victimise any person for having made a complaint to the lawful authorities or for having initiated or participated in the proceedings for redress on grounds of an alleged breach of any of the provisions of this Act, or for having disclosed any information, confidential or otherwise, to a lawful authority regarding alleged discriminatory behaviour, activities or practices.

(4) A person shall be discriminating with another person on the grounds of disability if he subjects such other person to a particular disadvantage through an apparently neutral provision, criterion or practice.

(5) A person shall be discriminating with another person on the grounds of disability if he fails to publicise, in an effective manner, those goods, facilities and services provided by him to persons with disability, in order to eliminate discrimination prohibited under this Act.

6. A person shall be discriminating against another person on the grounds of disability if he treats or proposes to treat such other person less favourably than he treats or would treat others who do not have such a disability because of the fact that such other person is accompanied by –

  1. an interpreter; or
  2. a reader; or
  3. an assistant; or
  4. a carer,

who provides interpretative, reading or other services to such other person because of the disability of such other person or because of any matter related to that fact, whether or not it is the practice to treat less favourably any person who is accompanied by an interpreter, a reader, an assistant or a carer, as the case may be.

PART IV PROHIBITION OF DISABILITY DISCRIMINATION

TITLE 1 – EMPLOYMENT

7. (1) No employer shall discriminate on the grounds of disability against a qualified person with a disability in regard to –

  1. procedures relative to applications for employment;
  2. the hiring, promotion or dismissal of employees;
  3. employee compensation;
  4. job training; and
  5. any other terms, conditions and privileges related to employment

(2) the generality of Part II of this Act, an employer shall be considered to discriminate on the grounds of disability against a person as is referred to therein, if such employer unreasonably –

  1. limits, segregates or classifies such a person in a way that adversely affects the opportunities or status of such a person; or
  2. participates in any contract, or other arrangement or relationship, the implementation of which has the effect of subjecting such a person to discrimination; or
  3. uses standards, criteria or methods of administration that have an adverse effect on the opportunities, status or benefits of such a person; or
  4. fails to make reasonable accommodation for the disability of such a person, unless the employer can prove that the required alterations would unduly prejudice the operation of the trade or business run by such employer; or
  5. denies employment opportunities to such a person where such denial is based on the need of the employer to make alterations for the disability of such a person; or
  6. uses qualification standards, employment tests, or other selection criteria that screen out or tend to screen out a person or a class of persons with a disability unless the employer can prove that the standards, tests or other selection criteria are an essential qualification or requirement for the position in question; or
  7. fails to select and to administer tests concerning employment in the manner most effective to ensure that, when the test is administered to such a person and such person happens to have a disability that impairs sensory, manual or speaking skills, the results of such tests accurately reflect the skills or aptitudes of such a person.

For the purposes of sub-article (1) and without prejudice to

(3) Whenever an employer excludes from any employment or continuation of employment a person who is qualified to take up such employment or to continue in such employment or otherwise limits in any way the opportunities, status or benefits of such a person because of the disability of another person with whom such person is known or believed to have a relationship or association, such exclusion or limitation shall, for the purposes of this article, be deemed as if it were a discrimination on the grounds of disability against a person as is referred to in sub-article (1).

(4) For the purposes of sub-article (2)(d), the factors to be considered in determining whether any alterations would unduly prejudice the operation of the trade or business run by the employer shall include:

  1. the nature and cost of the alterations;
  2. the overall financial resources of the workplace involved in the making of the alterations;
  3. the number of employees at the workplace requiring alterations;
  4. the effect on expenses and resources and the impact of the required alterations upon the operation of the workplace;
  5. the overall financial resources of the employer;
  6. the overall size of the business of the employer including the number of employees, and the number, type and location of its workplaces;
  7. the type of operation or operations of the employer, including the composition, structure and functions of the work-force; and
  8. the availability of financial assistance from public funds to defray the expense of any alterations.

(5) For the purposes of this article, and without prejudice to the generality of article 2, the term "make reasonable accommodation" includes –

  1. making existing facilities used by employees readily accessible to and usable by persons with disabilities;
  2. restructuring jobs, instituting part-time or modified work schedules, reassigning vacant positions, acquiring or modifying equipment or devices, appropriately adjusting or modifying examinations, training materials or policies, providing qualified readers or interpreters, and making any other similar alterations for a person with a disability; and
  3. quality and vocational career guide, which guide shall be free for the person with disability.

8. (1) Save as provided for in sub-articles (2) and (3), an employer shall not conduct or require any medical examination or otherwise make any enquiries of an applicant for employment or of any of his employees as to whether such applicant or employee is a person with a disability or as to the nature or severity of such disability except to ascertain the ability of the applicant to perform job-related functions or to identify the cost involved in any adaptations that may be required as a result of such disability.

(2) After an offer of employment has been made to an applicant for employment and, prior to the commencement of such employment, an employer may conduct or require a medical examination or make the offer of such employment conditional on the results of such examination if all applicants for this same kind of employment are made subject to such an examination.

(1) and (2) is in fact conducted, any information obtained regarding the medical condition and history of the applicant in relation to his disability shall be –

  1. collected and maintained on separate forms;
  2. kept in separate medical files; and
  3. treated as a confidential medical record.

(4) Notwithstanding the provisions of sub-article (3), if such applicant is subsequently employed, nothing shall preclude his employer from informing, if he so deems fit,

  • supervisors and managers within the same establishment regarding any necessary restrictions on the work or duties of such applicant and any alterations that may be required and,
  • first aid and safety personnel regarding any emergency treatment that might be required by such applicant because of his disability or regarding any special precautions that might need to be taken because of the said disability.

    • (5) the provisions of sub-articles (3) and (4), an employer may also conduct voluntary medical examinations, including the compilation of voluntary medical histories, which form part of a health programme for employees.

    (6) For the purposes of this article, any medical examination as is referred to therein shall include any medical and, or, psychological assessment that may be necessary in the circumstances of the case.

    9. It shall be unlawful for a registered organisation under the Employment and Industrial Relations Act, or for the committee of management or a member of the committee of management of such a registered organisation, to discriminate against –

    1. (a)  a person, on the grounds of the disability of such person or a disability of any of the family members of such person –
      1. by refusing or failing to accept his application for membership; or
      2. in the terms or conditions on which such organisation is prepared to accept his application for membership; and, or
    2. a member of such registered organisation, on the grounds of the disability of such member or a disability of any of his family member by –
      1. denying him access to any benefit provided by the organisation or limiting his access to such benefit; or
      2. depriving him of membership of the organisation; or varying the terms of such membership.

    Further to the provisions of sub-article (1), but subject to

    10. (1) It shall be unlawful for an employment agency to discriminate against a person on the grounds of his disability or a disability of any of his family members:

    1. by refusing to provide such person with any of its services; or
    2. in the terms or conditions it offers to provide such person with any of its services; or
    3. in the manner in which it provides such person with any of its services.

    (2) For the purposes of this article, an employment agency shall not be deemed to discriminate against a person on the grounds of his disability, if, taking into account his training, qualifications and experience relevant to the work sought, and all other relevant factors that it finds reasonable to take into account, such person would, because of his disability, be unable to carry out the inherent requirements of the work sought.

    TITLE 2 – EDUCATION

    11. (1) Save as provided for in sub-articles (2) and (3), and without prejudice to the generality of Part III of this Act, it shall be unlawful for an educational authority or institution to discriminate against –

    1. an applicant for admission as a student on the grounds of his disability or a disability of any of his family members –
      1. by refusing or failing to accept his application for such admission, or
      2. in the terms or conditions on which such educational authority or institution is prepared to admit him as a student; and, or,
    2. a student on the grounds of his disability or disability of any of his family members by –
      1. denying him access, or limiting his access, to any benefit, facility or service provided by such educational authority or institution; or
      2. expelling him from the educational institution he is attending.

    (2) Where an educational authority or institution has been wholly or primarily established for students who have a particular or a specific disability, such educational authority or institution may restrict admission to such an institution to persons who only have that particular or specific disability and refuse admission to other persons who do not have that particular or specific disability but another disability.

    (3) Where the admission or continued participation of a person with a disability as a student in an educational institution would necessitate the procurement of services or facilities that are not required by students who do not have a disability, the educational authority or institution concerned may refuse or fail to accept the admission or continued participation as a student of such a person in that educational institution if such authority or institution proves that the admission or continued participation of such person in such institution would require services or facilities the provision of which would impose unjustifiable hardship on the educational institution or authority concerned.

    TITLE 3 – ACCESS

    12. (1) Save as provided for in sub-article (2), and without prejudice to the generality of Part II of this Act, it shall be unlawful for any person to discriminate against another person on the grounds of the disability of such other person or a disability of any of his family members:

    then such a person may refuse a person with disability such access to or use of any property or facilities as are referred in sub-article (1)(a) or refuse to carry out any alterations to such property or facilities that would otherwise render such property or facilities accessible to a person with a disability.

    TITLE 4 – PROVISION OF GOODS, FACILITIES OR SERVICES.

    13. (1) Save as provided for in sub-article (3), and without prejudice to the generality of Part II of this Act, no qualified person with a disability shall, on the grounds of disability, be excluded from participation in or be denied the benefits of the programmes or activities of any person or body in relation to the goods, facilities or services to which this article applies or be discriminated against by any person or body providing such goods, facilities or services which the qualified person seeks to obtain or use.

    (2)

    1. by refusing to allow such other person access to, or the use of any property, or of any facilities within such premises, that the public or a sector of the public is entitled or allowed to enter or use (whether on payment or not); or
    2. in the terms or conditions on which such person is prepared to allow such other person access to, or the use of any such property or facilities; or
    3. in relation to the provision of means of access to such property including any necessary alterations to such property or facilities so as to make such access possible; or
    4. by requiring such other person to leave such property or to cease to use such facilities or to unjustifiably restrict in any way such use.

    Where –

    1. such property or facilities as aforesaid in this article are designed or constructed in such a way as to render them inaccessible to a person with a disability; and
    2. the alteration of such property or facilities would be unreasonable in the circumstances,

    (2) This article applies to the provision (whether on payment or not) of goods, facilities and services to the public or any sector of the public and includes in particular, but without prejudice to the generality of the foregoing –

    1. access to and use of any place which members of the public or a sector of the public are permitted to enter;
    2. the provision of property rights and of housing;
    3. accommodation in a hotel, boarding house or similar

    establishment;

    1. facilities by way of banking, insurance or for grants, loans, credit or finance;
    2. participation in occupational and other pension schemes;
    3. facilities for education;
    4. facilities for entertainment, sports or recreation;
    5. facilities for transport or travel by land, sea or air;
    6. the services of any profession or trade, or of any local or other public authority;
    7. membership of associations, clubs or other organisations;
    8. enjoyment of civic rights and performance of civic duties; and
    9. such other facilities and services as the Minister may prescribe by regulations made under this Act.

    (3) The provisions of sub-articles (1) and (2) shall not apply where compliance with such provisions in relation to a qualified person with a disability would be impracticable or unsafe and could not be made practicable and safe by reasonable changes to rules, policies or practices, or the removal of architectural, communication or transport barriers or the provision of auxiliary aids or services.

    TITLE 5 – HEALTH

    13A. (1) A person would be discriminating with another person due to a disability if that person is refused the giving of a health service of the same standard, conditions, even financial, of a range and quality like that given to other persons, including but not limited to that related to sexual and reproductive health.

    This also includes, but is not limited to, the refusal to administer food and fluids to the person with disability due to that disability.

    (2) A person with disability shall also have a right to the health services required by persons with disability specifically due to their disability, including:

    1. the early identification and intervention as appropriate;
    2. an assessment which reflects the actual needs and health conditions of the person with disability; and
    3. rehabilitation and habilitation services designed to minimise and prevent further disabilities:

    so however that the State shall offer all help as the case may be.

    TITLE 6 – ACCOMMODATION

    14. (1) Save as provided for in in sub-articles (2) and (3), and without prejudice to the generality of Part III of this Act, no person shall discriminate with another person on the grounds of the disability of such other person or a disability of any of the his family members –

    (2)

    1. (a) by refusing the application of such other person for accommodation; or
    2. (b) in the terms or conditions on which the accommodation is offered to such other person; or
    3. (c) by deferring the application of such other person for accommodation or by according to such other person a lower order of precedence in any list of applicants for that accommodation; or
    4. (d) by denying such other person access, or limiting the access of such other person, to any benefit associated with accommodation occupied by such other person; or
    5. (e) by evicting such other person from any accommodation that is occupied by such other person; or
    6. (f) by subjecting such other person to any other detriment in relation to accommodation occupied by such other person; or
    7. (g) by refusing to permit such other person to make alterations to accommodation occupied by such other person if –
      1. (i) such other person has undertaken to restore at his own expense the accommodation to its condition before alteration on leaving the accommodation and the action required to restore the accommodation to its condition before alteration, is, in fact, practicable;
      2. (ii) the alteration does not involve the alteration of property occupied by other persons.

        The provisions of sub-article (1) shall not apply if –

        1. the person who provides or proposes to provide the accommodation or a near relative of that person, resides and intends to continue to reside in that property; and
        2. the accommodation provided in that property could cater for no more than four persons.

        (3) The provisions of sub-article (1) shall also not apply if the provision of accommodation in properties where particular services or facilities that would be required by the person with a disability would be unreasonable in the circumstances.

        TITLE 7 – EXEMPTIONS

        15. Nothing under this Act shall in any way be construed as prohibiting any form of action that may be taken in the circumstances of the case by any person, authority or institution to ensure that persons who have a disability are in one way or another –

        1. granted equal opportunities with other person who do not have a disability; or
        2. accorded special treatment commensurate with their special needs in the provision of goods, facilities, services or opportunities in order to meet such special needs; or
        3. allowed grants, benefits or programmes, whether direct or indirect, to meet their special needs,

        with a view to the integration of such persons with other persons who do not have a disability in matters related to employment, education, accommodation, the provision and use of goods, services and facilities, the administration of laws and their capacity to lead an independent life within the community as a whole.

        16. (1) Notwithstanding any of the foregoing provisions of this Act, a person shall not be deemed to discriminate against another person on the grounds of disability of such other person by refusing to offer to such person an insurance policy or by offering discriminatory terms or conditions for insurance coverage, provided that:

        1. such decision is based on actuarial or statistical data which is reasonably relevant to the assessment of the risk insured; and
        2. whenever such actuarial or statistical data is not available and cannot reasonably be obtained, such decision is reasonable having regard to any other relevant factors which are relevant to the assessment of the risk to be insured.

        (2) A person may, for the purpose of this article only, require from a person who requests insurance coverage, any further information relevant to the assessment of the risk to be insured.

        17. Nothing under this Act shall in any way be construed as prohibiting any person, authority or institution from complying with an order or award of a court or tribunal.

        18. Nothing under this Act shall in any way be construed as prohibiting any person, authority or institution from discriminating against a person on the grounds of his disability if –

        1. such disability constitutes an infectious or a
        2. contagious disease; and
        3. discrimination as aforesaid is considered by the health authorities as imperative in the interests of public health.

        19. The provisions of this Act shall not affect any provision in a charitable instrument that confers charitable benefits, or enables charitable benefits to be conferred, wholly or in part on persons who have a disability or a particular disability.

        PART V TEST OF REASONABLENESS

        20. (1) For the purposes of this Act, in determining the reasonableness of any action to be undertaken by any person in the fulfilment of the provisions of this Act, including any alteration, change, and, or provision of services, facilities or assistive means, regard shall be had by te Board as to whether such actions could be undertaken without unjustifiable hardship.

        (2) The factors to be considered in determining whether such actions could be undertaken without unjustifiable hardship shall include –

        1. the nature and cost of the actions in question;
        2. the overall financial resources of the person, body, authority or institution concerned and the effect on expenses and resources or the impact of such actions upon the operations of such person, body, authority or institution; and
        3. the availability of grants from public funds to defray the expense of the said actions.

        20A. (1) There shall be a Board to determine what is reasonable, for the object of the preceding article, appointed by the Commissioner for a period of three years.

        (2) The Board shall be composed of:

        1. five persons to represent organisations, public entities and experts in the sector;
        2. a technical consultant of the Commissioner; and
        3. a member of the committee of a voluntary organisation

        as defined under article 2:

        So however that the representatives of public entities and experts in the sector and the technical consultant of the Commissioner may from time to time be appointed according to the nature of the case discussed by the Board.

        (3) At least half of the total number of members of the Board shall be persons with disability or family members of persons with disability who cannot represent themselves:

        So however that the number of persons with disability shall be higher than the number of family members of persons with disability who cannot represent themselves.

        (4) The Board shall be presided by the Chairperson who shall be a person with disability and who shall preside over every meeting of the Board, aided by the Vice Chairperson who shall be a person with disability.

        (5) The Board shall have a Secretary appointed from amongst officials or employees appointed by the Commissioner.

        (6) The quorum of the Board shall be of three members, one of whom shall be the Chairperson or the Vice Chairperson.

        (7) The validity of every Board proceeding shall not be affected by any vacancy amongst its members or by a defect in the appointment of a member.

        (8) The decisions of the Board shall be taken by a majority of the members present and voting. The Chairperson or, in his absence, the Vice Chairperson, shall have an original and a casting vote in the case of an equality of votes.

        (9) Without prejudice to the provisions of this Act and of any regulations made thereunder, the Commissioner shall regulate the proceedings of the Board.

        (10) Together with the members of the Board there may also be appointed, as observers, competent officials, appointed by every Ministry who may from time to time be called by the Commissioner to assist the Board in its functions, so however that the Commissioner may recommend particular officials for this scope.

        (11) Every request made to the Board shall be made in writing; in the case where the person wishing to make a request needs help to formulate such request in an oral form and, or in writing, it shall be the duty of the Commissioner to take reasonable steps to provide appropriate help to that person.

        (12) There shall be no appeal from a decision of the Board.

        PART VI – COMMISSION FOR THE RIGHTS OF PERSONS WITH DISABILITY

        21. (1) There shall be a Commission for the Rights of Persons with Disability, which shall be styled "the Commission", and shall be composed of the Commissioner for the Rights of Persons with Disability, as appointed under article 21A, and a Council for the Rights of Persons with Disability, which shall be styled "the Council", as appointed under article 24.

        (2) The juridical representation of the Commission shall be vested in the Commissioner.

        21A. (1) The Prime Minister shall, after consultation with the Minister, appoint the Commissioner for the Rights of Persons with Disability, who as far as possible shall be a person with disability, who shall be styled "the Commissioner".

        (2) A person shall not be qualified to hold the office of a Commissioner if that person:

        1. is a Minister, Parliamentary Secretary, Member of the House of Representatives; or
        2. is serving as a judge or magistrate; or
        3. is bankrupt, or has made an arrangement with his creditors, or is insolvent or guilty of a voluntary offence against the person; or
        4. has been found guilty of an offence which impinges on public trust or theft or fraud, or knowingly received property acquired through theft or fraud, of an offence against the good order of the family, or a breach of a provision of this Act or of the Convention; or
        5. is not capable to perform his duties; or
        6. is a member of an organisation of, or for, persons with disability.

        (3) such appointment, a public officer, such person shall continue to hold such office but shall not hold any other office which is incompatible with the exercise of his official duties as a Commissioner for the Rights of Persons with Disability or with the independence and impartiality expected from this office or from the public trust therein.

        (4) In the exercise of the functions established under this Act, the Commissioner shall act independently and shall not be subject to any direction or control of any person or other authority.

        (5) Without prejudice to the provisions of sub-article (6), the Commissioner shall hold office for a period of three years, and shall be eligible for a reappointment upon termination of such period.

        (6) Unless he vacates the office before termination, the person appointed as Commissioner shall continue to hold office until another Commissioner is appointed.

        (7) The Commissioner may at any time resign from office by writing to the Minister.

        (8) The Commissioner may at any time be removed or suspended from office by the Prime Minister after consultation with the Minister for the reasons of proven inability to exercise his functions as a Commissioner or proven misbehaviour or an unjustified absence of more than fourteen consecutive days or twenty-eight days within a period of twelve months.

        (9) The Prime Minister may, at any time, during the absence of the Commissioner, or for any other temporary purpose when the Commissioner deems it fit to do so, appoint a person to act in his office according to this article, until the Commissioner resumes his responsibilities under this Act; so however that the person so appointed shall be eligible to hold such office according to this Act.

        22. (1) The Commission, whilst paying particular attention to the different needs of persons with disability, shall –

        1. identify, establish and update all national policies directly or indirectly related to disability issues;
        2. identify the needs of persons with disabilities, their families and voluntary bodies working in the field of disability issues and to take all necessary steps or propose appropriate measures in order to cater for such needs as much as possible;
        3. ensure that all government programmes concerning the affairs and interests of persons with disabilities, their families and voluntary bodies working in the field of disability issues, are implemented in accordance with national policies for disability issues;
        4. ensure the necessary co-ordination between all government departments and agencies in implementing measures, services or initiatives proposed by government or proposed by the Commission from time to time;
        5. keep direct and continuous contact with local and foreign bodies working in the field of disability issues, and with other groups, agencies or individuals as the need arises;
        6. monitor the provision of services offered by government or its agencies or by any other person or group of persons, where the clients of such services are persons with disability;
        7. work towards the elimination of discrimination against people with disabilities;
        8. carry out general investigations with a view to determining whether the provisions of this Act are being complied with;
        9. investigate such complaints as may be made to them of failure to comply with any provision of this Act in an individual case and, where it seems appropriate, conciliate in relation to such complaints;
        10. inquire into, and make determinations on, matters referred to it by the Minister;
        11. provide, where and as appropriate, assistance, to persons with disabilities in enforcing their rights under this Act;
        12. keep under review the working of this Act and, when deemed fit by the Commission or so required by the Minister, draw up and submit to the Minister proposals for amendments to same;
        13. examine enactments, and (when requested to do so by the Minister) propose enactments, for the purpose of ascertaining whether the enactments or proposed enactments are or would be, inconsistent with or contrary to the objects of this Act, and to report to the Minister the results of any such examination;
        14. provide all such services that may be necessary or required for the Commission to attain its objectives;
        15. collate, analyse and publish statistics related to the disability sector which, inter alia, indicates the national level achieved in inclusive policy;
        16. have the power to take any appropriate action, including proportionate administrative measures and judicial action, to eliminate discrimination on the basis of disability as defined in this Act;
        17. raise awareness and foster respect for the rights and dignity of persons with disabilities, to combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on gender and age, in all areas of life;
        18. raise awareness about the capabilities and contributions of persons with disabilities;
        19. provide the independent mechanism to promote, protect and monitor the implementation of the United Nations Convention on the Rights of Persons with Disability and any of its Optional Protocols as ratified by Malta; and
        20. to monitor Guardianship Orders.

        (2) of the Commission; provided that, the Commissioner may appoint, in accordance with the provisions of article 26(2), the officers whom he deems required, in order to ensure that the functions of the Commission are carried out.

        (3) The Commissioner may, on behalf of the Commission, pursue all required actions, including judicial actions, to ensure that the provisions of this Act are adhered to, and he shall be deemed to have the required juridical interest on behalf of the Commission.

        23. (1) The Commissioner may appoint one or more officials or employees to appear and act in his name and on his behalf in any judicial proceeding and on every act, contract, agreement or any other document.

        (2) A document which shows that it is an instrument made or issued and signed by the Commissioner shall be approved as evidence and shall, unless the contrary is proven, be deemed as an instrument made or issued by the Commissioner.

        24. (1) There shall be a Council for the Rights of Persons with Disability appointed by the Minister, to aid the Commissioner in the exercise of his duties, made up of the Commissioner who shall preside and not less than fourteen members appointed by the Minister.

        (2) Amongst the Council members, who shall represent different types of disability and be representative of society, there shall be:

        1. nine members who are representative of voluntary organisations of persons with disability, after
        2. a member who is a representative of the University of Malta;
        3. a member who is a representative of the entities which provide services to persons with disability;
        4. a member who is a representative of residential homes for persons with disability;
        5. a member nominated by the Government; and
        6. a member nominated by the Opposition:

        So however that at least half of the total number of members of the Council shall be persons with disability or family members of persons with disability who cannot represent themselves.

        (3) Together with the Commissioner and the members of the Council there shall be appointed, as observers, competent officers by every Ministry who may from time to time be called upon by the Commissioner to assist him in his work, so however that the Commissioner may recommend particular officers for this scope.

        (4) A person shall not be qualified to be a member on the Council if that person:

        1. is serving as a judge or magistrate; or
        2. is bankrupt, or has made an arrangement with his creditors, or is insolvent or guilty of a voluntary offence against the person; or
        3. has been found guilty of an offence which impinges on public trust or theft or fraud, or knowingly received property acquired through theft or fraud, or an offence against the good order of the family, or the breach of a provision of this Act or of the Convention; or
        4. is not capable to perform his duties.

        (5) Without prejudice to the provisions of sub-article (6), the members of the Council shall hold such position for three years, and shall be eligible for reappointment as members when the period of such office terminates.

        (6) A member may at any time resign from his office by writing to the Minister.

        (7) A member may at any time be removed or suspended from office by the Minister after consultation with the Commissioner as a result of:

        1. proven inability to perform his functions as member of the Council; or
        2. proven misbehaviour; or
        3. unjustified absence for more than three consecutive

        meetings; or

        1. if, being a chosen member due to his representative state, he stops from holding that representative state;
        2. in the case of the happening of one of the circumstances provided for under sub-article (4).

        25. (1) The Commissioner shall have a right to regulate the proceedings of the Council.

        (2) Without prejudice to sub-article (1), the quorum for Council meeting shall be six members present together with the Commissioner.

        (3) The proceedings of the Council shall be valid notwithstanding any defect in the appointment of a member, or in the vacancy of any of the members of the Council.

        26. (1) The Commissioner shall occupy the post on a full-time basis on those terms and conditions as indicated by the Minister. When the Commissioner is a public officer seconded from the Government, he shall have the right, upon termination of his secondment, to return to the post he used to occupy without losing his position or seniority.

        (2) The Commissioner may appoint, after consultation with the Minister, the officers whom he deems required, according to the approval of the Minister with reference to the number, remuneration and terms and conditions of other services.

        (3) The Commissioner shall treat as confidential, all documents and any other information which is in his possession or under his control, or which in any manner is brought to his attention, and which concerns persons with disability together with any other matter or other affairs related to the relevant person with disability, and the obligation of confidentiality as so put on the Commissioner shall extend to the officers and employees of the Commission.

        27. (1) The Prime Minister may, at the request of the Commission, from time to time direct that any public officer shall be detailed for duty with the Commission in such capacity and with effect from such date as may be specified in the direction.

        (2) The period during which a direction as aforesaid shall apply to any officer specified therein shall, unless the officer retires from the public service, or otherwise ceases to hold office at an earlier date, or a different date is specified in the direction, end on the happening of any of the following events, that is to say –

        1. the acceptance by such officer of an offer of transfer to the service of, and permanent employment with the Commission made in pursuance of sub-article (8); or
        2. the revocation by the Prime Minister of any direction made by him under this article in relation to such officer.

        Detailing of public officers for duty with the Commission.

        (3) Minister in relation to any officer, the Prime Minister may, by further direction, detail such officer for duty with the Commission in such capacity and with effect from such date as may be specified

        Where a direction as aforesaid is revoked by the Prime in the further direction, and the provisions of sub-article (2) shall thereupon apply to the period of duration of such further direction in relation to such officer.

        (4) When a public officer is detailed for duty with the Commission under any of the provisions of this article, such officer shall, during the time the direction has effect in relation to him, be under the administrative authority and control of the Commission, but he shall for other intents and purposes remain, and be considered and treated as, a public officer.

        (5) Without prejudice to the generality of the foregoing, a public officer detailed for duty as aforesaid –

        1. shall not during the time while such officer is so detailed –
          1. be precluded from applying for a transfer to a department of the Government in accordance with the terms and conditions of service attached to the appointment under the Government held by him at the date on which he was detailed for duty; or
          2. be so employed that his remuneration and conditions of service are less favourable than those which are attached to the appointment under the Government held by him at the date he was detailed for duty as aforesaid or which would have become attached to such appointment, during the said period, had such officer not been detailed for duty with the Commission; and
        2. shall be entitled to have his service with the Commission considered as service with the Government for the purpose of any pension, gratuity or benefit under the Pensions Ordinance and the Widows’ and Orphans’ Pension Act, and of any other right or privilege to which he would be entitled, and shall be liable to any liability to which he would be liable, but for the fact that he is detailed for duty with the Commission.

        (6) (i) of paragraph (a) of sub-article (5), the same consideration shall be given thereto as if the applicant had not been detailed for duty with the Commission.

        (7) The Commission shall pay to the Government such contributions as may from time to time be determined by the Minister responsible for Finance in respect of the cost of pensions and gratuities earned by an officer detailed for duty with the Commission as aforesaid during the period in which he is so detailed.

        (8) The Commission may, with the approval of the Prime Minister, offer to any public officer detailed for duty with the Commission under sub-article (2) permanent employment with the

        Where an application is made as provided in subparagraph specified in the offer.

        (9) Every public officer who accepts permanent employment with the Commission offered to him pursuant to this article shall, for all purposes other than those of the Pensions Ordinance and the Widows’ and Orphans’ Pensions Act, cease to be in the service of the Government and shall enter into service with the Commission with effect from the date of his acceptance of the offer, or such other date agreed between him and the Commission; and for the purposes of the said Ordinance and the said Act, service with the Commission shall be deemed to be service with the Government within the meaning thereof:

        Provided that for the purposes of the said Pensions Ordinance, the pensionable emoluments of such officer on retirement shall be deemed to be the pensionable emoluments payable to an officer in Government service in a grade and at an incremental level corresponding to the post and incremental level at which the officer retires from the Commission.

        28. At least two months prior to the end of the financial year, the Commission shall submit to the Minister, a business plan (including a financial plan) covering the proposed activities of the Commission during the following financial year. If approved by the Minister and by the Minister of Finance, such business plan, shall be the approved budget of the Commission.

        29. (1) At least two months prior to the end of its financial year, the Commission shall submit to the Minister, a business plan (including a financial plan) covering the proposed activities of the Commission during the following financial year. If approved by the Minister and by the Minister for Finance, such business plan shall be the approved budget of the Commission.

        (2) The Commission shall keep proper accounts of its income and expenditure and shall prepare and send to the Minister statements of account in relation to each financial year of the Commission.

        (3) The accounts of the Commission may be audited by the Auditor General and for this purpose the provisions of the Financial Administration and Audit Act shall apply.

        (4) The Minister shall, at the earliest opportunity, cause to be laid on the Table of the House of Representatives a copy of such accounts of the Commission.

        (5) The financial year of the Commission shall be the twelve months ending on the 31st of December, provided that the first financial year of the Commission after the coming into force of this Act shall commence on the date of the coming into force of this Act and shall end on the 31st day of December of the following year.

        30. (1) As soon as practicable after the end of every calendar year, but in any case not later than the 31st day of March of the following year, the Commission shall submit to the Minister a report on its activities during the year, hereinafter referred to as an "Annual Report".

        (2) Each Annual Report shall include a general report of developments during the period to which it relates in respect of matters falling within the scope of the duties of the Commission and shall also include activities and initiatives undertaken to examine and, or, provide for the different needs of persons with disabilities.

        (3) The Minister shall, as soon as practicable, but in any case not later than two months after its submission, to him by the Commissioner, cause a copy of such report together with copies of the current Commissioner business plan and the financial plan, to be laid before the House of Representatives.

        31. The Commission shall be exempt from any liability for the payment of income tax.

        PART VII COMPLAINTS, INVESTIGATIONS AND ENFORCEMENT

        32. (1) The Commissioner may, on behalf of the Commission, himself initiate investigations on any matter involving an act that is allegedly unlawful under any of the provisions of this Act.

        (2) The Commissioner may also initiate investigations on the receipt of a complaint in writing alleging that a person has committed an act that is unlawful under any of the provisions of this Act. Such complaint may be lodged with the Commissioner by:

        1. any person aggrieved by the act; or
        2. any person who is the parent, or legal curator or family member of a person with a mental disability.

        (3) If it appears to the Commissioner that a person wishes to make a complaint under sub-article (2) and that person requires assistance to formulate the complaint orally and, or, in writing, it shall be the duty of the Commissioner to take reasonable steps to provide appropriate assistance to that person.

        33. (1) In respect of general investigations or investigations of complaints undertaken by the Commissioner, the Minister shall prescribe by regulations –

        1. the procedure whereby the Commissioner may require a person to furnish any information as is necessary for the investigations aforesaid in this article, and the time, manner, and form in which such information is to be furnished;
        2. the procedures to be followed where a person fails to supply such information;
        3. the circumstances in which, following these investigations aforesaid, the Commission may take appropriate legal action.

        (2) in the case of an alleged discrimination by one person against another, the arrangements whereby the Commissioner may himself refer the matter to the First Hall of the Civil Court:

        Provided that no such referral shall prevent an individual having a legal interest from making a claim of discrimination the subject of an action, including an action for damages before the said Court.

        33A. Any association, organisation or any legal entity which has a legitimate interest in ensuring that the provisions of this Act are complied with, may institute, on behalf or in support of the person against whom an unlawful act of discrimination has been committed under this Act, with his or her approval, proceedings for redress before the competent Court.

        34. A claim by any person having a legal interest in the matter, made personally or through his or her legal representative, that another person has committed an unlawful act of discrimination against him or her as provided for under this Act shall be made by means of a civil action and may include a claim for damages; and any damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head, of not more than two thousand and five hundred euro (€2,500) as the court may declare.

        34A. Where, in any judicial proceedings, other than criminal proceedings, taken in terms of this Act for redress following an unlawful act of discrimination, the person commencing the proceedings establishes before the Court facts from which it may be presumed that there has been discrimination, it shall be for the defendant to prove that there has been no breach of the provisions of this Act.

        PART VIII MISCELLANEOUS

        35. (1) The Minister may make regulations generally for giving effect to the provisions of this Act, and the enforcement thereof, and in particular, but without prejudice to the generality of the foregoing –

        1. for providing for any matter which is required or authorised by this Act to be prescribed; and, or,
        2. for the exemption of any person, or class of persons or body, from any of the requirements of Part IV of this Act as may be specified in the aforesaid regulations; provided that any such exemption shall only be declared by the Minister after consultation with the Commissioner and provided that such exemption shall be for a specified period of time which can be renewed by the Minister after consultation with the Commission.

        (2) The Minister may also make regulations as he may deem appropriate for the implementation of the provisions of any international treaty relating to persons with disability, to which Malta is a party.

        (3) Any regulations made by virtue of this article may specify different periods of exemption in relation to –

        (a) the provision and use of different goods, facilities or services;

        1. the provision and use of different goods, facilities or services;
        2. different persons or bodies; or
        3. different classes of persons or bodies.

        36. The Minister may designate by means of notice in the Gazette the competent authority to act as the focal point for matters related to the implementation of the United Nations Convention on the Rights of Persons with Disability and any of its Optional Protocols as may be ratified by Malta.

        37. When another law is inconsistent with this Act, this Act shall prevail when such inconsistency regards the rights of a person with disability.