Chapter 6 argues that in interpreting the right to legal capacity ‘on an equal basis with others’, a substantive notion of inclusive equality must be applied. In doing so, it applies but also critiques General Comment No 6: On Equality and Non-Discrimination, published by the United Nations Committee on the Rights of Persons with Disabilities. Inclusive equality demands recognition of the difference of impairment and associated disadvantages. Once difference is acknowledged, either supported decision-making or decision-making by substitutes may be required to recognise an adult’s legal capacity ‘on an equal basis with others’ and to promote inclusion. This chapter draws on existing commentary explaining the ‘hybrid’ nature of the right to equality in bridging both socio-economic and civil and political rights and driving the principle of indivisibility.

The Fair Work Act 2009 (Cth) also prohibits discrimination in employment based on a protected attribute such as ‘race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’ (s 351(1)). The discrimination on the basis of religion may be permissible in faith-based non-government schools and is discussed further in this chapter.

Property and markets are not fully intertwined. Although one cannot think about the idea of a market without thinking about property – property, after all, is one of the market’s foundational building blocks – it is possible to think about property without thinking about markets. Still, liberal property and markets are so deeply connected that a liberal theory of property cannot ignore the market. A liberal theory of property must explain how property can remain loyal to its liberal commitments in the context of large-scale economies heavily reliant on the operation of markets.

This chapter will analyse how the duration test limits the capacity of persons experiencing episodic impairments from being defined as disabled for legal protections and support. Attribute-based remedial interventions target a particular group. Sorting society is challenging, especially when it is being applied across large populations with complex and varied experiences and needs. This chapter will analyse how some definitions of disability require that a medical condition is experienced for a particular duration of time before that condition will be regarded as a disability. When length of impairment is used in this fashion, the duration of a medical condition becomes an arbitrary factor that determines an entitlement to protection and support. This chapter concludes that the decision to leave persons with episodic disabilities without adequate protections and support is not based upon a medical assessment, cost to employers or adherence to international norms. Instead, the arbitrary decision to deploy duration tests is based upon a failure to conceptualise how ability diversity manifests.