ACT No. II of 2012 An Act to amend various laws related to Disability BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as

(L.S.) G eorge A bela

30th March, 2012

ACT No. II of 2012

An Act to amend various laws related to Disability

BE IT ENACTED by the President, by and with the advice

and consent of the House of Representatives, in this present

Parliament assembled, and by the authority of the same, as

follows:-

(1) The short title of this Act is the Various Laws

(Disability Matters) (Amendment) Act, 2012.

PART I

This Part amends the Code of Organization and Civil

Procedure and it shall be read and construed as one with the

Code of Organization and Civil Procedure, hereinafter in this Part

referred to as “the Code”.

In the first proviso to sub-article (1) of article 187 of the

Code for the words “any person who, on account of infirmity of

mind, is unable to give evidence of such service” there shall be

substituted the words “any person who, at the time of the service,

has a mental disorder or other condition, which renders him

incapable of giving evidence of such service”.

In the Maltese text of article 491 of the Code, for the

words “hija minuri, jew moħħha marid, jew interdetta” there

shall be substituted the words “hija minuri, jew miġnuna, jew

interdetta”.

In the Maltese text of sub-article (2) of article 519 of the

Code, for the words “l-inkapaċità ġejja minn mard tal-moħħ jew

raġunijiet oħra” there shall be substituted the words “l-inkapaċità

ġejja minn ġenn jew raġunijiet oħra”.

Article 520 of the Code shall be amended as follows

(a) in sub-article (1) thereof, for the words ““persons

who are habitual idiots, insane, frenzied or prodigal”, there

shall be substituted the words “persons who have a mental

disorder or other condition, which renders them incapable of

managing their own affairs, or who are insane or prodigal”;

and

(b) immediately after sub-article (3) thereof, there shall

be added the following new sub-article

“(4) For the purposes of this Title, and for the

purposes of the provisions of articles 187, 747, 781 and

929 of this Code

(a) “other condition”, where used in the

context of a condition that renders a person

incapable of managing his own affairs, 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; and

(b) “mental disorder” shall have the meaning

assigned to it in the Mental Health Act

Provided that any reference in such definitions

to “disability of mind” or “arrested or incomplete

development of mind” shall not be construed to mean a

mental disorder for the purposes of this Title and of such

provisions.”.

In paragraph (d) of article 521 of the Code, for the

words “in case of idiocy or other mental infirmity” there shall

be substituted the words “in case of a mental disorder or other

condition, which renders a person incapable of managing his own

Article 523 of the Code shall be amended as follows

(a) immediately after sub-article (1) thereof, there shall

be added the following new paragraph

“A curator shall be appointed for a period not

exceeding three years. Such appointment can be

renewed, where the court considers it so appropriate,

after evaluating the reports submitted by the curator in

accordance with sub-article (4)”; and

(b) immediately after sub-article (3) thereof, there shall

be added the following new sub-article

“(4) (a) During the term of his appointment, the

curator shall submit a yearly sworn report to the court

declaring the circumstances relating to his curatorship

and the general state of the person interdicted or

incapacitated, and shall also comply with the other

duties of curators as may be provided in accordance with

the requirements of any other law.

(b) The court, after taking cognizance of the report,

shall hear the curator and any other person it may deem

fit to ensure the well-being of the person interdicted or

incapacitated and the fulfilment of the rights and duties

of the curator.”.

Paragraph (b) of sub-article (2) of article 747 of the Code

shall be amended as follows

(a) in the English text, for the words “incapacitation

of lunatics, imbeciles or persons insane or prodigal” there

shall be substituted the words “incapacitation of persons with

a mental disorder or other condition, which renders them

incapable of managing their own affairs, or persons insane or

prodigal”; and

(b) in the Maltese text, for the words “inabilitazzjoni

ta’ persuni furjużi, imbeċilli, moħħhom marid jew berbieqa”

there shall be substituted the words “inabilitazzjoni ta’ persuni

b’diżordni mentali jew kundizzjoni oħra, li tagħmilhom

inkapaċi li jieħdu ħsieb ħwejjiġhom, imġienen jew berbieqa”.

Paragraph (b) of article 781 of the Code shall be

amended as follows

(a) in the English text, for the words “a lunatic or

insane person, and any other person” there shall be substituted

the words “an insane person, a person with a mental disorder

or other condition, which renders him incapable of managing

his own affairs, and any other person”; and

(b) in the Maltese text, for the words “il-persuni furjużi

jew moħħhom marid u kull persuna oħra” there shall be

substituted the words “il-persuni b’diżordni mentali jew

kundizzjoni oħra, li tagħmilhom inkapaċi li jieħdu ħsieb

ħwejjiġhom, jew imġienen, u kull persuna oħra”.

In paragraph (a) of article 929 of the Code, for the words

“not legally represented or imbecile or person interdicted” there

shall be substituted the words “not legally represented, or person

with a mental disorder or other condition, which renders him

incapable of managing his own affairs, or person interdicted”.

PART II

This Part amends the Civil Code, and it shall be read

and construed as one with the Civil Code, hereinafter in this part

referred to as “the Code”.

Article 189 of the Code shall be amended as follows

(a) in sub-article (1) thereof, for the words “who is in

a state of imbecility or other mental infirmity or is prodigal”

there shall be substituted the words “who is a person with

a mental disorder or other condition, which renders him

incapable of managing his own affairs, or who is insane or

prodigal”;

(b) in sub-article (3) thereof, for the words “person

who is imbecile, mentally infirm, or prodigal” there shall be

substituted the words “person who has a mental disorder or

other condition, which renders him incapable of managing his

own affairs, or is insane or prodigal.” and

(c) immediately after sub-article (3) thereof, there

shall be added the following new sub-article

“(4) For the purposes of this Title, and for the

purposes of the provisions of articles 597, 752, 1034,

1035, 1036 and 1241 of this Code

(a) “other condition”, where used in the

context of a condition that renders a person

incapable of managing his own affairs, 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; and

(b) “mental disorder” shall have the meaning

assigned to it in the Mental Health Act

Provided that any reference in such definitions

to “disability of mind” or “arrested or incomplete

development of mind” shall not be construed to mean a

mental disorder for the purposes of this Title and such

provisions.”.

Article 190 of the Code shall be deleted.

Article 597 of the Code shall be amended as follows

(a) in paragraph (c) thereof, for the words “interdicted

on the ground of insanity” there shall be substituted the words

“interdicted on the ground of insanity or of mental disorder”;

(b) in paragraph (d) thereof, for the words “are not of

sound mind at the time of the will” there shall be substituted

“are persons with a mental disorder or other condition, which

renders them incapable of managing their own affairs at the

time of the will”.

For article 752 of the Code, there shall be substituted

the following

752. (1) It shall be lawful for the father, the

“Substitution

mother, the other ascendants, the uncle or aunt, brother

or sister, to substitute a third party in the place of a

with a mental

minor in the event of the latter dying without issue,

other condition,

which renders

them incapable

insane persons.

before attaining the age of eighteen years, but only with

regard to the property in which such minor shall have

been instituted heir or appointed legatee.

(2) It shall also be lawful for any of the said

persons to substitute a third party in the place of any

person with a mental disorder or other condition, which

renders him incapable of managing his own affairs or

insane person, in regard to such property only as they

shall have devised to him, in the event of his dying

with the mental disorder or other condition, whilst still

incapable of managing his own affairs, or in a state of

insanity, without issue.

(3) Any substitution referred to in this

article, if made by the father, the mother or any other

ascendant by whom a share of the reserved portion is

due to the heir-institute or legatee, may only include

such portion of the property as the minor, on attaining

majority, or the insane person, or person with a mental

disorder or other condition, if of sound mind at the time

of his death, could dispose of.”.

For article 1034 of the Code, there shall be substituted

the following

1034. Any person having the charge of a minor,

having charge or of a person with a mental disorder or other condition,

which renders him incapable of managing his own

affairs, shall be liable for any damage caused by such

minor or such person, if he fails to exercise the care of a

other condition,

which renders bonus paterfamilias in order to prevent the act.”.

him incapable

of managing his

In article 1035 of the Code, for the words “Persons of

unsound mind” there shall be substituted the words “Persons with

a mental disorder or other condition, which renders them incapable

of managing their own affairs.”.

In article 1036 of the Code, for the words “the person

of unsound mind referred to in the last preceding article.” there

shall be substituted the words “the person with a mental disorder or

other condition referred to in the last preceding article.”.

In article 1241 of the Code, for the words “interdicted

or of unsound mind, with the authority of the court” there shall be

substituted the words “interdicted, or have a mental disorder or

other condition, which renders them incapable of managing their

own affairs, with the authority of the court”.

PART III

This Part amends the Equal Opportunities (Persons with

Disability) Act, and it shall be read and construed as one with the

Equal Opportunities (Persons with Disability) Act, hereinafter in

this Part referred to as “the principal Act”.

Article 2 of the principal Act shall be amended as

(a) for the definition “accommodation”, there shall be

substituted the following

“ “accommodation” includes residential or business

accommodation;”;

(b) immediately after the definition “accomodation”

there shall be added the following new definition

“ “alteration” means necessary and appropriate

modifications and adjustments;”;

(c) the definition “auxiliary aid” shall be deleted;

(d) immediately after the new definition “alteration”

there shall be added the following new definition

“ “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;”.

(e) for the definition “disability”, there shall be

substituted the following new definition

“ “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;”;

(f) immediately after the definition “family member”

there shall be added the following new definition

“ “harassment” means subjecting a person to

any unwelcome act, request, conduct, including

spoken words, gestures or the production, display or

circulation by any means of written words, pictures or

other material which could reasonably be regarded as

offensive, humiliating, hostile, degrading or intimidating

to such person;”;

(g) immediately after the definition “pensionable age”

there shall be added the following new definition

“ “property” includes all existing and new buildings

and outdoor areas such as streets, pavements, public

paths, beaches and gardens;”;

(h) the definition “qualified person with a disability”

shall be amended as follows

(i) in paragraph (a) thereof, for the words

“with or without any accommodation” there shall be

substituted the words “with or without any reasonable

accommodation”; and

(ii) in paragraph (b) thereof, for the words

“provision of goods, facilities” there shall be substituted

the words “provision and use of goods, facilities” and

for the words “provision of such goods, facilities or

services” there shall be substituted the words “provision

and use of such goods, facilities or services”;

(i) immediately after the definition “qualified person

with a disability “ there shall be added the following new

definition

“ “reasonable accommodation” means 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; ”; and

(j) immediately after the new definition “reasonable

accommodation” there shall be added the following new

definition

“ “voluntary organisation” shall have the same

meaning assigned to it by article 2 of the Voluntary

Organisations Act.”.

Article 5 of the principal Act shall be amended as

(a) the whole article 5 shall be re-numbered as sub-

article (1) thereof;

(b) in sub-article (1) thereof as renumbered, for the

words “is accompanied by or possesses an auxiliary aid”

there shall be substituted the words “is accompanied by

or possesses any assistive means” and for the words “is in

possession of such auxiliary aid” there shall be added the

words “is in possession of such assistive means”; and

(c) immediately after sub-article (1) thereof as re-

numbered, there shall be added the following new sub-

articles

“(2) A person shall be discriminating against

another person on the grounds of disability if he subjects

such other person to harassment 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 against

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 against

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.”.

Article 7 of the principal Act shall be amended as

(a)

sub-article (2) thereof shall be amended as follows

(i) in paragraph (d) thereof, in the Maltese

text thereof, for the words “jonqos milli jipprovdi bdil

raġonevoli” there shall be substituted the words “jonqos

milli jipprovdi akkomodazzjoni raġonevoli” and for the

words “unless the employer can prove that the required

accommodation would unduly prejudice the operation”

there shall be substituted the words “ unless the

employer can prove that the required alterations would

unduly prejudice the operation”; and

(ii) in paragraph (e) thereof, for the words

“the need of the employer to make reasonable

accommodation for the disability of such a person” there

shall be substituted the words “the need of the employer

to make alterations for the disability of such a person”;

(b) the English text of sub-article (4) thereof shall be

amended as follows

(i) for the words “determining whether an

accommodation would unduly prejudice the operation

of the trade” there shall be substituted the words

“determining whether any alterations would unduly

prejudice the operation of the trade;

(ii) in paragraph (a) thereof, for the words “cost

of the accommodation” there shall be substituted the

words “cost of the alterations”;

(iii) in paragraph (b) thereof, for the words

“making of the accommodation” there shall be

substituted the words “making of the alterations”;

(iv) in paragraph (c) thereof, for the words

“the workplace requiring accommodation” there shall

be substituted the words “the workplace requiring

alterations”;

(v) in paragraph (d) thereof, for the words

“impact of the required accommodation” there shall

be substituted the words “impact of the the required

alterations”; and

(vi) in paragraph (h) thereof, for the words “to

defray the expense of any accommodation” there shall

be substituted the words “to defray the expense of any

alterations”; and

(c) sub-article (5) thereof, shall be amended as

follows

(i) for the words “For the purposes of this article,

the term “make reasonable accommodation” includes -

” there shall be substituted the words “For the purposes

of this article, and without prejudice to the generality

of article 2 of this Act, the term “make reasonable

accommodation” includes - ”; and

(ii) in the English text of paragraph (b) thereof,

for the words “similar accommodation for a person with

a disability” there shall be substituted the words “similar

alterations for a person with a disability”.

In paragraph (a) of sub-article (4) of article 8 of the

principal Act, for the words “any necessary accommodations

that may be required” there shall be substituted the words “any

alterations that may be required”.

Article 11 of the principal Act shall be amended as

(a) sub-article (1) thereof shall be amended as follows

(i) for the words “in sub-articles (2) and (3), it

shall be unlawful” there shall be substituted the words

“in sub-articles (2) and (3), and without prejudice to the

generality of Part II of this Act, it shall be unlawful”;

and

(ii) in sub-paragraph (i) of paragraph (b) thereof,

for the words “benefit provided by such educational

authority” there shall be substituted the words “benefit,

facility or service provided by such educational

authority”; and

(b) in sub-article (3) thereof for the word “admission”

there shall be substituted the words “admission or continued

participation” wherever this occurs.

Article 12 of the principal Act shall be amended as

(a) for the marginal note thereof, there shall be

substituted the words “Access to property.”;

(b)

sub-article (1) thereof shall be amended as follows

(i) for the words “in sub-article (2), it shall be

unlawful” there shall be substituted the words “in sub-

article (2), and without prejudice to the generality of Part

II of this Act, it shall be unlawful”;

(ii) in paragraph (a) thereof, for the words “use of

any premises” there shall be substituted the words “use

of any property”, and in the English text for the words

“a article of the public,” there shall be substituted the

words “a sector of the public”;

(iii) in paragraph (b) thereof, for the words “such

premises or facilities” there shall be substituted the

words “such property or facilities”;

(iv) in paragraph (c) thereof, for the words

“means of accesss to such premises” there shall

be substituted the words “means of access to such

property”, and for the words “any necessary alterations

to such premises” there shall be substituted the words

“any alterations to such property”; and

(v) in paragraph (d) thereof, for the words “to

leave such premises” there shall be substituted the words

“to leave such property”; and

(c) for sub-article (2) thereof there shall be substituted

the following

“(2) Where –

(a) 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

(b) the alteration of such property

or facilities would be unreasonable in the

circumstances,

then such a person may refuse a person with disability

such access to or use of any property or facilities as are

referred in paragraph (a) of sub-article (1) 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.”

Article 13 of the principal Act shall be amended as

(a) in sub-article (1) thereof, for the words “in sub-

article (3), no qualified person with a disability shall” there

shall be substituted the words “in sub-article (3), and without

prejudice to the generality of Part II of this Act, no qualified

person with a disability shall”;

(b) the English text of sub-article (2) shall be amended

as follows

(i) for the words “any article of the public” there

shall be substituted the words “any sector of the public”;

and

(ii) in the English text of paragraph (a) thereof,

for the words “a section of the public,” there shall be

substituted the words “a sector of the public”; and

(c) in sub-article (3) thereof, for the words “reasonable

modification to rules” there shall be substituted the words

“reasonable changes to rules”.

Article 14 of the principal Act shall be amended as

(a)

sub-article (1) therof shall be amended as follows

(i) for the words “in sub-articles (2) and (3)

article no person, whether as principal or agent, shall

discriminate” there shall be substituted the words

“in sub-articles (2) and (3), and without prejudice

to the generality of Part II of this Act, no person shall

discriminate”; and

(ii) in paragraph (g) thereof, for the words “to

make reasonable alterations to accommodation” there

shall be substituted the words “to make alterations to

accomodation”, and in sub-paragraph (ii) thereof, for

the words “the alteration of premises occupied” there

shall be substituted the words “the alteration of property

occupied”;

(b)

sub-article (2) thereof shall be amended as follows

(i) in paragraph (a) thereof, for the words “reside

on those premises” there shall be substituted the words

“reside in that property”; and

(ii) in paragraph (b) thereof, for the words

“provided in those premises” there shall be substituted

the words “provided in that property”; and

(c) for sub-article (3) thereof, there shall be substituted

the following

“(3) The provisions of sub-article (1) shall

also not apply if the provision of accommodation in

properties where special the services or facilities that

would be required by the person with a disability would

be unreasonable in the circumstances.”.

Article 15 of the principal Act shall be amended as

(a) in the English text, for the word “be constructed as

prohibiting” there shall be substituted the words “be construed

as prohibiting”; and

(b) for the words “the provision of goods” there shall

be substituted the words “the provision and use of goods”.

Sub-article (1) of Article 20 of the principal Act shall be

substituted by the following

“(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 as to whether such

actions could be undertaken without unjustifiable hardship.”;

Article 21 of the principal Act shall be amended as

(a) sub-article (1) thereof shall be amended as follows

(i)

for the words “Housing and Economic

Planning.” there shall be substituted the words “Housing

and Economic Planning, as well as any other Ministries

that he may deem relevant.”; and

(ii) for the words “in the field of disability

issues.” there shall be substituted the words “in the

field of disability issues, after consultation with such

voluntary organisations.”;

(b) for sub-article (2) thereof, there shall be substituted

the following new paragraph

“(2) At least one half of the total number of the

members of the Commission shall themselves be

persons with a disability or family members of persons

with a disability who cannot represent themselves. Such

members shall be representative of different types of

disability

Provided that, where possible, there shall be a

balanced representation of women and men.”; and

(c) in sub-article (3) thereof, for the words “family

member of a person with a mental disability” there shall be

substituted the words “family member of a person with a

disability who cannot represent himself”.

Immediately after paragraph (o) of article 22 of the

principal Act, there shall be added the following new paragraphs

“(p) 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; and for the purpose of pursuing any

judicial action as aforesaid the Commission shall in all cases

be deemed to have the necessary judicial interest to pursue

such action in its own name;

(q) 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;

(r) raise awareness about the capabilities

and

contributions of persons with disabilities; and

(s) 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.”.

Immediately after article 33 of the principal Act, there

shall be added the following new article

33A. Any association, organisation or any legal

“Proceedings

instituted by

entity which has a legitimate interest in ensuring that the

third parties.

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.”.

Article 34 of the principal Act shall be amended as

follows

(a)

in the Maltese text thereof, for the words

“diskriminazzjoni kontrih jew kontrieha” there shall

be substituted the words “diskriminazzjoni kontrih jew

kontriha”;

(b) for the words “shall be subject to civil action in

like manner as any other claim for damages” there shall be

substituted the words “shall be made by means of a civil

action and may include a claim for damages”; and

(c) for the words “up to a maximum of four hundred

and sixty-five euro and eighty-seven cents (465.87) as the

court may declare” there shall be substituted the words “two

thousand and five hundred euro (2,500), as the court may

declare”.

Immediately after article 34 of the principal Act there

shall be added the following new article

34A. Where, in any judicial proceedings, other

than

criminal

proceedings, taken in terms of this Act for

there has been

no breach of 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.”.

Article 35 of the principal Act shall be amended as

(a) sub-article (2) thereof shall be renumbered as sub-

article (3) thereof;

(b) immediately after sub-article (1) thereof, there

shall be inserted the following new sub-article

“(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.”; and

(c) in paragraph (a) of sub-article (3) as renumbered

for the words “the provision of different goods” there shall

be substituted the words “the provision and use of different

goods”.

Immediately after article 35 of the principal Act there

shall be added the following new article

36. The Minister may designate by means of

notice

in the Gazette the Competent Authority to act as

designate focal

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.”.

Passed by the House of Representatives at Sitting No. 460 of 26th March, 2012.

M ichael F rendo

Speaker

Raymond Scicluna

Clerk to the House of Representatives

€1.80