Consultation questions

1. How should disability be defined in the Disability Discrimination Act? Disability should be defined according to the social model and be inclusive of all people with disability. It should also focus on a difference of ability, rather than the deficit model that we currently follow.

2. What factors should be considered in developing a new definition of disability? There are a number of factors that must be considered in the creation of a more contemporary definition of disability. Firstly, the premise that disability is by default a negative needs to be dismissed: this is inherently problematic when a medical or criterion model is used. Rather, disability needs to be defined in ways in which it indicates difference in perspective and capabilities. This is especially relevant when defining neurodiversity, particularly when other differences are apparent. Further to that, “difference” or “disability” needs to be considered in a more positive way and less according to the deficit model. For too long, children with disabilities have been assessed according to what they cannot do rather than what they CAN. This is especially true when assessments for supports through the NDIS are performed. Parents/caregivers are encouraged to focus on the worst case scenario instead of how supports may enable their child to access society on the same basis as those without disability. This can be soul destroying for child and caregivers alike. Underpinning this definition should be the ethos that providing supports for people living with disabilities should be seen as an investment, rather than a cost burden.

   3. Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes?

   Most definitely! The current legal model places the onus on the applicant rather than the respondent to “prove” that discrimination has occurred. When there are a number of reasons, or multiple occasions where the discrimination could be seen to have a different purpose, this compounds the impact on the complainant. It is already a very difficult and stressful process to claim discrimination, particularly when the applicant is facing a corporation or employer with more power. The power imbalance is further compounded when an applicant is forced to bring claims according to differing Acts.

   4. Could any other changes be made to the Disability Discrimination Act to recognise and provide protection for people with disability who have intersecting identities, or addressing compounding discrimination?

   As stated in the previous response, there is a substantial power imbalance between the applicant and the respondent, which is particularly challenging when the respondent is a large corporation or government department. These entities tend to have legal advice “on tap”: often in house and the budgets to cater for the very best legal minds. In contrast, an applicant will most likely not have the same level of resources or expertise to counter this.

Complex cases will, therefore, often need to be terminated due to lack of funding, lack of expertise or sheer exhaustion at what is an onerous process. The Disability Discrimination Act should, therefore, mandate that complex cases are to be given equal budgetary considerations on behalf of both the applicant and the respondent, in the interests of justice and equity.

5. What test should be used to ensure that the definition of direct discrimination is easy to understand and implement for both duty holders and people with disability, and why?

The use of a comparator should be removed. Any unfavourable treatment that can be shown to discriminate should be sufficient grounds for a claim. Duty holders should be mandated to have regular training on the Disability Discrimination Act, regardless of rank or seniority. Employees should be provided with training on direct discrimination, with relevant and inclusive examples. All employees and their supervisors should feel empowered to call out any form of discrimination in the workplace. One test would be to survey all employees and their supervisors through a competency based training exercise, with remediation if and when necessary and for audits to be conducted to ensure that such information distribution and training is conducted. This already occurs in institutions such as Education with Child Protection and First Aid certification.

6. How should the burden of proof be addressed in the Disability Discrimination Act?

The burden of proof should be primarily the responsibility of the duty holder. For far too long, it has been the case that the person living with a disability has had to shoulder the burden of proof and many respondents attempt to apportion blame on the applicant because they have not been suitably specific. One such example that I am aware of personally was the case of a Graduate within the NSW Public Service who disclosed their neurodiversity after they had successfully been placed in the program, due to issues they were experiencing with completion of tasks. Interestingly, these assigned tasks were identified by management as being 1-2 steps above the grade level of the Graduate anyway. They requested minor adjustments, such as tasks and notes of meetings to be written and timely feedback. These were refused, partially because the Graduate had not disclosed their neurodiversity at the first instance, but also because the supervisor was not prepared to make the adjustments. The Graduate was subsequently placed on an improvement program, based on neurotypical capabilities and their employment ceased. During the improvement program, the Graduate was expected to continue to complete tasks that were above their grade and without adequate training or instruction. The Graduate was obliged to submit “evidence” of their neurodiversity and, during a subsequent claim for discrimination, this evidence was called into question by the NSW Government department’s legal team. Had the burden of proof not been so blatantly skewed towards the significantly more powerful government department in this instance, it would have been much easier for the applicant to demonstrate that their needs were not only not considered, their legitimacy was called into question.

7. How could the definition of indirect discrimination be amended to ensure that it is easy to understand and implement for people with disability and duty holders?

Until my retirement in 2021, I was a special educator within the NSW Public Education system. The DDA was my “Bible” whenever I had to advocate for the students within my care. There were times when I had to advise even Principals of the requirements to make “reasonable” adjustments and that the definition of “reasonable” did not mean that they could refuse a child on the basis that the school did not have the requisite infrastructure to support the needs of that student. The terms “reasonable” and “unjustifiable hardship” are far too nebulous and open to interpretation. The definition must be changed so as to not leave any doubt as to the requirements to accommodate people living with disability. At present, there is far too much “wiggle room”. Schools are leading the way and plenty of public spaces and services are more “user friendly”: however, there is a definite need for a definition that leaves no doubt that there is an obligation to provide people with disability the same services on the same basis as their peers who do not live with disability.

8. Should the reasonableness element in the definition of indirect discrimination be:

a. removed

This is a potential solution. However, it does not consider factors that are outside the control of some duty holders, such as building construction constraints (they may rent the property).

b. retained and supplemented with a list of factors to consider

Providing a list of factors to consider may work to an extent: however, there are always going to be those who will see a loophole or think that there are exempt. Any list should be seen as not exhaustive.

c. replaced by a legitimate and proportionate test

As for “b”

d. other

Each case should be taken into consideration based on its merit. As such, lists of potential factors and tests should be used in conjunction with any requests made by the person with disability.

Please expand on your response.

9. Should the language of ‘does not or would not comply, or is not able or would not be able to comply’ be removed from the definition of indirect discrimination?

An individual living with a disability should not have to comply with a condition, requirement or practice that discriminates against them, directly or otherwise, in the vast majority of cases. There are very few situations where indirect discrimination can be either justified or excused.

I most certainly agree that the inability to comply requirement is unnecessary and confusing and can, in fact, be used to justify discrimination. It should be removed.

10. Should the Disabilities Convention be included in the objects provision of the Disability

Discrimination Act?

Most definitely! The Disabilities Convention is the cornerstone of any actions to support the rights of people living with disabilities.

11. Should the Disability Discrimination Act be expressly required to be interpreted in a way that is beneficial to people with disability, in line with human rights treaties?

There should be no question that the Disability Discrimination Act should have, at is very core, the aim of benefitting those who live with disability. The DDA should be recognised as a human rights treaty.

12. If there was a positive duty in the Disability Discrimination Act, who should it apply to?

The positive duty should be the responsibility of all duty holders, in all entities. It must definitely move from a regressive, reactive complaints model, to one where compliance with best practice is considered not only in general terms, but on a case by case basis: one where all duty holders take responsibility to eliminate discrimination.

13. Are there lessons from the operation of the positive duty in the Sex Discrimination Act that could be incorporated into a positive duty in the Disability Discrimination Act?

Yes! In the case of sex discrimination, we have moved from a situation where (mostly) women were expected to endure discrimination on the basis of their gender identity to one where we have an (almost) zero tolerance for such outdated practices. There should be no tolerance for any duty holder or entity that fails to comply with the rights of people living with disability as being “on the same basis” as those without disability. These include the right to a workplace that is free from risks to health and safety as well as victimisation and harassment. Duty holders must take responsibility to eliminate, as much as possible, any form of disability discrimination, through proactive measures. The balance of responsibility should be moved from the burden of proof model we currently have, where a person with disability has to prove that discrimination took place and, consequently, the extent of its impact, towards one where the duty holder is responsible for harm minimisation at the very least.

14. What costs, benefits and other impacts would duty holders experience in meeting a positive duty under the Disability Discrimination Act? If you are an existing duty holder under the Disability Discrimination Act, please specify how you think meeting a positive duty would impact you.

I am not a duty holder, but I would think that the costs incurred in meeting positive duty would be a preventative measure and as such an investment in a more equitable enterprise. Seeking to create an environment where all stakeholders, regardless of their status, are free from discrimination has to be a good investment. To put it bluntly, is it not good business practice to prevent lawsuits through negligence? Being proactive and ensuring the elimination of disability discrimination is not just good business sense: it is common human decency.

15. Should there be exceptions or limits to the application of a positive duty?

Only insofar as it may significantly impact negatively on the duty holder and, in such cases, there should be support for those, such as small business owners, to comply with regulations.

16. Would the creation of a stand-alone duty to provide adjustments better assist people with disability and duty holders to understand their rights and obligations?

As I understand this premise, it would definitely better assist all involved to understand their rights and obligations. There is a general lack of understanding of the obligations of duty holders to make adjustments that assist the person with disability to perform their duties “on the same basis” as those without disabilities. There is, also, regrettably, a hesitance to make adjustments, often with a misguided opinion that this in fact advantages the person with disability to the detriment of their non-disabled peers.

In the case of the aforementioned Graduate, the refusal to provide the adjustment of written instructions and notes of meetings was based on the duty holder’s assumption that it would be an “extra task” imposed on them personally (totally disregarding the fact that, as a Supervisor of a Graduate, it was part of their duties to ensure that the Graduate was fully aware of their task requirements, regardless of any perceived disability) and that the Graduate should be able to write their own notes, thus totally disregarding the fact that the Graduate was concerned that their interpretation of the verbal instructions could differ significantly from the Supervisor’s intentions, together with the fact that the Graduate needed the visual cues of the notes.

Creating a stand-alone duty that is clearly expressed as a mandated requirement would enable duty holders to comply with the Act and provide those living with disabilities specific grounds for a complaint, should the duty holder fail to comply. Unfortunately, there are still alleged “duty holders” who are resistant to compliance with making adjustments and who will only act on the “big stick” approach.

17. Should the scope of the duty to provide adjustments apply only to the existing areas of public life covered by the Disability Discrimination Act, or extend to other contexts?

I understand that there are feasibility issues with an extension of a duty to provide adjustments to private life: however, where it is feasible, it should be seriously considered. This particularly pertains to those individuals who, for whatever reason, choose to behave in a manner that is offensive towards people with disabilities and who use ableist comments or worse in public.

18. Would removing the word ‘reasonable’ from the term ‘reasonable adjustments’ to align the language with the legal effect create any unintended consequences?

Removing the word “reasonable” from “reasonable adjustments” provides a less emotive terminology. The word “reasonable” is of itself a term that can be interpreted in a number of ways, often contradictory and what is “reasonable” to one person may not have the same context to another, or indeed may differ according to the circumstances. Thus, its removal negates any confusion regarding interpretation. The provision of adjustments should be made in accordance with the circumstances of the person with disability in question and not necessarily with the concerns of the duty holder in mind. There needs to be a significant shift from adjustments made on the basis that they may “negatively” impact on the duty holder towards the view that any adjustment afford the person with disability the opportunity to participate in society “on the same basis” as people without disability.

19. What is your preferred approach to achieving greater fairness and transparency in claims of unjustifiable hardship:

a. the Disability Royal Commission amendment as proposed

b. a new definition of unjustifiable hardship

c. other

Please expand on your response.

It is my view that the Disability Royal Commission amendment as proposed is the best fit. The alternative definition leaves too much open to interpretation, especially with the “…could include a requirement for the respondent claiming unjustifiable hardship to have consulted with the person with disability” clause. How it can be considered that a lack of consultation with the person with disability is a legitimate approach is not only farcical: it dismisses the position of those individuals who are impacted most. A consultation should be seen as a vital component to achieving greater fairness and transparency.

20. What are your views on amending the Disability Discrimination Act to consider the

nature and extent of any adjustments made and encourage consultation between

prospective or current employers and prospective or current employees before

making employment decisions?

Transparency in any such process is important and mutual consultation should be welcomed. However, this should take into consideration the rights of both the person with disability and the duty holder to fairness and justice. These rights should not be impinged upon.

People with disability have the right to privacy when it comes to any records pertaining to their disability. However, should they decide to pursue employment, they should be willing to provide information that is pertinent to a position and the “inherent requirements”, with the assurance that this information will not be used against them or to harass or intimidate them.

Should a prospective employee choose to disclose relevant information pertaining to their disability, the prospective employer ( the duty holder) should be prepared to discuss potential adjustments that could be made to accommodate the person with disability to perform their duties “on the same basis” as those without disability. They should not be able to use this information to discount a potential employee’s suitability for the role, nor should they be able to construct any job applications that prevent a person with disability from applying for a role.

Provided that certain inherent requirements such as academic or other qualifications, or physical capacity to perform the tasks are met, no person, regardless of their disability, should be prevented from applying for a role. The Australian Public Service has gone some way to addressing this issue, with its “Recruitability” program. This program works parallel with and as an adjunct to employment programs that are open to all applicants with the requisite qualifications.

An individual’s disability should never be seen as a barrier to employment: however, there should be open and transparent consultation throughout the recruitment process.

21. Are there other amendments to the Disability Discrimination Act that could support

engagement between prospective or current employers and prospective or current

employees to better understand the inherent requirements of a job?

People with disability often have an innate and sometimes warranted fear that their disability will be used against them or indeed trivialised when they are seeking employment. This is often the result of experience and/or real or perceived injustice. It is often the case with people living with an “invisible” disability such as neurodiversity, for example, those who are “twice exceptional”, having intellectual giftedness as well as being on the Autism spectrum. This was the case with the Graduate to whom I have referred in previous answers.

He made the decision to not apply as a person with disability and when he found that he required adjustments to enable him to complete tasks “on the same basis” as those without ASD, he was met with preconceived opinions that dismissed his disability as a genuine reason for requiring the adjustments. The NSW Public Service in his instance did not appear to be equipped to support him in a way that optimised his contributions and support him to “bring his whole self” to the position. Indeed, documentation pertaining to the support of people living with disability was sadly lacking in examples of those with neurodiversity, instead focussing on more “visible” disabilities such as sensory and physical disabilities. The supervisors seemed unaware of support structures for the creation of adjustments, either for the person with disabilities or for the employer. Indeed, the Graduate’s need for adjustments were not only trivialised by senior management, they were seen as a burden on the supervisor’s workload.

This lack of understanding of the complex needs of people with neurodiversity seems to be an issue that needs addressing. That it is occurring in the 21st Century within the NSW Public Service is testament to the urgent need for a review into recruitment of graduates, especially considering the prevalence of people living with neurodiversity within our highly skilled university students.

22. Should any other amendments be made to the definition of inherent requirements, including factors that should be considered when deciding whether a person could carry out the inherent requirements of a job?

There are the more obvious inherent requirements of some jobs, such as the physical requirements of heavy lifting or long periods of standing. Such requirements are detailed in positions such as those I have recently completed as a PPLO for the Federal Election. These are much easier to quantify than, for example, the requirements to perform complex tasks within a short time frame, that may negatively impact upon a person living with neurodiversity and these inherent requirements will require more nuanced and individualised approaches. A person with ASD cannot necessarily fit a “one size fits all” model and consequently, their skills and expertise cannot automatically be dismissed on the basis that they need support and adjustments to complete tasks in a timely manner. However, the employer must also be assured that such tasks will be completed according to their requirements and so consultation must be transparent and conducive to both party’s requirements. Both the person with disability and the duty holder (in this case, the recruiter/employer) should be both prepared for and willing to negotiate and engage during the process.

23. Should the concepts of exclusion and exclusionary discipline be defined in the Disability Discrimination Act?

Most definitely! The fact that there are varying definitions and applications of exclusionary discipline across the states and territories necessitated a definition that is consistent across all states and territories.

24. Should there be exceptions or limits on when exclusion is unlawful?

In a word: no! All possible and potential exceptions and limits should be within the law.

25. Should any of the state and territory provisions relating to exclusionary discipline be adopted in the Disability Discrimination Act?

It seems to me personally that the ACT Education Act 2004 is the most reasonable. However, it is with caution that I would recommend any of the state and territory provisions as they are subject to changes within the jurisdictions of said states and territories.

26. Would a different approach to exclusionary discipline be more appropriate in the higher education and vocational education and training sectors?

Exclusionary discipline within higher education and vocational education is problematic in that, in the majority of scenarios, it is concerning people with disability who are deemed as adults ie over the age of 18, with the exception of students who are pursuing vocational training and are still at secondary school or who have left school to pursue an apprenticeship and completing TAFE courses. As such, these students are also subject to laws which dictate appropriate and lawful behaviour. It can therefore be a lawful minefield. The health and safety of other students and indeed, members of the public must be considered in conjunction with the needs of the student.

There is, therefore, a need for a more nuanced approach: one that takes into consideration the laws and regulations of a more “adult” situation which is by its nature more punitive in its approach.

Harassment and offensive behaviour

27. How could the Disability Discrimination Act be amended to protect people with disability from offensive behaviour and/or harassment?

There should be provisions that make it unlawful for not only an individual to harass a person with a disability: this should be extended to include groups of people who harass or groups of people who have disability who are subject to said harassment.

28. If the Disability Discrimination Act were to prohibit offensive behaviour and/or harassment, how should these terms be defined?

There should be continuity in how terms are defined across all Commonwealth legislation as it pertains to discrimination. Such definitions, which are already within the Racial Discrimination Act, Sex Discrimination Act and the Disability Standards for Education 2005, should include standardised and shared definitions.

29. Should there be exemptions for any behaviour, similar to the Racial Discrimination Act?

The only exemptions within the Disability Discrimination Act should be if the discrimination was said or done in the performance, exhibition or distribution of an artistic work or for any genuine academic, artistic or scientific purpose. This could include for the purpose of establishing an historical context. All exemptions should be subject to the scrutiny of the Australian Human Rights Commission or equivalent entity.

Vilification

30. Given the recent legislative developments, are there any further gaps in the legislative framework that could be addressed by amendments to the Disability Discrimination Act to protect people with disability from vilification?

Vilification in any form is unacceptable behaviour in a civilised, caring society. The Disability Discrimination Act must include specific protections against vilification. This should encompass all areas of public life. There are instances where social media is precluded from any Australian legislation, due to the ownership of said platforms. This needs to be addressed: social media platforms operating within the Australian jurisdiction should be made accountable for the content displayed and available to Australian audiences. I understand that this would be a difficult process, but it is not insurmountable and could be extended to include all forms of discriminatory content.

Such discriminatory behaviour against people with disability must be included in criminal law in all states and territories, in line with the Commonwealth Criminal Code Amendment (Hate Crimes) Act 2025 (Cth).

31. How could the Disability Discrimination Act be amended to ensure that it covers policing?

Considering the reluctance of courts to date to include policing within the category of “service”, it would seem that a “stand alone” category should be included within the DDA to cover the actions of police. This should include both actions towards alleged perpetrators as well as actions towards alleged victims. Any such provision would necessitate mandatory training of police and associated duty holders to ensure clarity of the regulations.

32. Are there any specific circumstances or situations relating to policing or justice that should be excluded from the application of the Disability Discrimination Act?

There should be no specific circumstances that should be excluded: the DDA is primarily to ensure that people with disability are given the same rights as those without disability.

33. Could any of the permanent exemptions be narrowed or updated, while balancing other policy considerations?

The permanent exemption pertaining to migration should be updated. Advances in health have been significant and many people with disability can live more independently and contribute to society to a more significant extent than when the DDA was first formulated. As such, it is my personal belief that an individual’s circumstances with regard to the impact that their disability may have on society, particularly of a financial nature, should be more closely measured against the contributions they may make to said society. The care of each individual within society should be seen as an investment in the future needs of the society as a whole, not as a cost “burden”. Regulations regarding the immigration of people with disability should be updated to better fit this perspective, not some outdated perspective of the deficit model. Indeed, denying people with disabilities based on the financial impact they may place on society is in itself discriminatory.

34. Should the Australian Human Rights Commission be given the power to grant special measures certificates?

Yes! Providing the Australian Human Rights Commission the power to grant special measures certificates would serve as a mediator. The Commission is ideally placed to provide advice to those unsure of their obligations and their rights under the DDA: as such, it follows that the Commission would also have the knowledge base to determine whether special measures certificates are appropriate.

35. Should a definition for special measures be added to the Disability Discrimination Act?

Yes! Clarification takes away the guesswork and provides all parties with the knowledge to work within the Act.

36. Should a definition for temporary exemptions be added to the Disability Discrimination Act?

Yes, for the same reason as outlined in question 35.

37. Would you recommend any changes to the legislative process of granting temporary exemptions?

Other than a more streamlined approach to the process, so as to provide timely decisions, I do not have any further recommendations.

38. How could the protections for assistance animals be clarified for both people with disability and duty holders, including in relation to evidence of training, evidence or standards of hygiene and behaviour that are appropriate for a public place?

A nationally consistent approach to the regulation is vital. People with disability are just as likely to travel between states, often with their assistance animals. Having separate States regulations can be confusing, both for the duty holder and the person with disability. This must include consistency in the ways in which assistant animals are defined, how they are trained and how duty holders should respond to the role that the assistance animal plays in supporting the person with disability.

39. Would legislative amendments or guidance materials be helpful to balance flexibility and certainty, or a mixture of both?

Both should be used. Duty holders and people with disability should be able to readily access guidance materials that are written to facilitate clear understanding of the regulations and the legislative amendments should be clearly communicated to both duty holders and people with disability.

40. Should specific training organisations be prescribed under the Disability Discrimination Regulations?

There should be stringent guidelines for the approval of training organisations. However, this should not restrict newer organisations from applying for accreditation: nor should these organisations be allowed to charge excessive fees for the training.

41. Should there be minimum requirements for action plans (such as through guidelines) and what should the minimum requirements cover?

Yes! These should also be nationally consistent, as per the assistance animals regulations.

42. Should the Australian Human Rights Commission be able to reject action plans that fail to meet these requirements?

Most definitely. Any action plans that do not meet the standards of the Commission should firstly be reviewed in consultation between the duty holder and the Commission and, if found to not meet the minimum requirements, be rejected.

43. Should there be a set period of time for which an action plan is valid?

Yes. Dependent upon the objectives of the action plan, a maximum time should be determined, after which a review of said plan should be undertaken and any relevant changes should be made. Such plans under review should be assessed with the same scrutiny as a new application.

44. Are there any other changes to the action plan process that you would recommend?

Whilst is may be impractical in some instances, I would recommend that mini reviews should be undertaken throughout the time frame of any plan. This should definitely occur should the plan’s ethos be called into question by either a duty holder or a person with disability or when the plan’s initial stated objectives change or are no longer applicable.

45. How could compliance with and enforcement of the Disability Standards be improved?

Periodic investigations, in the form of auditing and as such a proactive approach, together with the reactive response to complaints should form the basis from which enforcement of the Disability Standards is assured. Within the realms of the duty holder, especially when it pertains to the workplace or in the provision of services, regular training on the Disability Standards must be mandated. This training should be consistent and could ideally be the responsibility of the Australian Human Rights Commission to create modules in consultation with relevant duty holders. People with disability should also be included in this training, both in the formulation of materials and in the delivery, both as presenters and as recipients of training. Training should be presented at any orientation of new personnel and at regular intervals throughout a work year and organisations should be able to provide evidence through accreditation that this training has been provided. The introduction of a positive duty to all duty holders would align to this approach. It would also reduce the burden on the individual making a complaint. The complaints process as it stands presently is an onerous one and is skewed significantly towards the duty holder. My example of the Graduate is one such case. It was made extremely difficult for this Graduate to raise complaints, both within the government department in an effort to receive the adjustments that would assist the Graduate to perform his duties on the same basis as his peers without disability, as well as when the situation was escalated to Anti-Discrimination NSW. In this case, the odds were clearly stacked against the person with disability, as the government department was able to bring in lawyers who sought to diminish the impacts that the discrimination had caused to the Graduate and to abdicate any responsibility that the duty holder, in this case the supervisor, should have had in regards to the wellbeing of the Graduate. It was a harrowing experience for the Graduate, who was left with no further recourse and no employment. As such, a positive duty would have necessitated appropriate training for the duty holder, who would have been more cognisant of their responsibilities and of the rights of the Graduate to request reasonable adjustments and would potentially have negated any need for a complaint.

46. Should the Disability Discrimination Act be amended to encourage relevant duty

holders to self-report on their compliance with the Disability Standard(s) in disability

action plans?

Self-reporting is open to a number of concerns. Such approaches can be reduced to a simple “tick the boxes” approach. My experiences both as a special educator and as the parent of the abovementioned Graduate suggest to me that any self-reporting should also come with rigorous checks. This could, in the case of a service provider, include physical inspections to

ensure that the reporting is accurate. Compliance with training should also be checked by a third party. I have this opinion because I have witnessed a number of scenarios where such compliance is treated in a dismissive manner by a number of duty holders.

47. Could the Australian Human Rights Commission provide additional guidance to duty holders regarding how to self-report on the Disability Standards in disability action plans?

Most definitely, including stressing the vital importance that such compliance practices have on the wellbeing of people with disability. The Commission could also provide a “Help Line” or online support service to assist duty holders to self-report appropriately.

48. Are there examples of legislative provisions in Commonwealth or state and territory anti-discrimination law that could be drawn on to modernise or strengthen the Disability Discrimination Act?

The Disability Discrimination Act has actually been hampered in the past by the plethora of other associated state laws. These laws were actually formulated to protect the rights of people with disability: however, the legislation has in fact reduced the capacity for prosecution through a convoluted chains of actions, which, rather than form the basis of support for people with disability, have actually acted in favour of the alleged “duty holder”. One such entity that has series issues when dealing with workplace discrimination is Anti-Discrimination NSW. The Fair Work Act in NSW is also not supportive of people with disability who work in the public sector. A complete overhaul of the legislation is necessary, including the allocation of aspects of disability discrimination as they pertain to the workplace, in particular, for the “hidden disabilities” such as neurodiversity. The DDA has not remained relevant for people with ASD and who are also intellectually gifted.

49. What additional guidance materials should be provided to the community, including duty holders, about the operation of the Disability Discrimination Act or specific amendments proposed in this paper?

There is a crucial need for the community to be advised as to both their rights and their responsibilities regarding disability discrimination. It has been apparent to me, personally, that the more “obvious” forms of disability are well understood by the community and as such the majority of people are aware of their rights and responsibilities. However, this is not so with people whose disabilities are not so readily identifiable, such as people with neurodiversity, people with mental health issues or people with chronic health conditions. As such, there is a need for a substantial community education campaign and awareness raising, both from the perspective of the person with disability and the duty holder. This could be in the form of online awareness campaigns and other forms of media, including, for example, banners on bus stops. “Plain language” checklists should also be readily available to both people with disability and duty holders through advocacy groups and relevant government departments.

50. How can we ensure the Disability Discrimination Act remains fit-for-purpose into the future?

It is vital that the Disability Discrimination Act be regularly reviewed in its entirety and that any time where an aspect of the Act is brought into question as a result of decisions made through the judicial process, that this be duly considered and altered if found to be necessary. Society does not remain stagnant and, therefore, the Act must evolve to suit society’s expectations. A reasonable and just society takes into account the wellbeing of ALL of its members. The most recent challenge is to raise awareness regarding the very real discrimination that people with neurodiversity and mental health issues are facing. My example regarding the Graduate is, unfortunately, not an isolated incident. His experience within a government department and the subsequent treatment by the legal representatives of that department indicate that much needs to be done to eliminate discrimination against “hidden disabilities” in the workplace. The fact that this is happening in a government department, where it could be assumed that disability discrimination is not tolerated as much as in private enterprise, is a serious red flag.

51. Are there any other issues with the Disability Discrimination Act that should be considered as part of this review?

This is not necessarily an issue per se with the DDA: however, it is my humble opinion, through years of experience in advocating for people with disabilities and for others who have been discriminated against on the basis of race, sexual orientation and faith, that all the Acts that pertain to any form of discrimination should be under one “umbrella”. As such, awareness raising campaigns could be created with a similar template and a common language. All aspects of each of the Discrimination Acts could use a similar platform. This would streamline both the legislation and the community understanding that discrimination in any form is not to be tolerated and would enable all people who are potentially subject to discrimination to come together in a cohesive group of support. Similarly, each Anti-Discrimination department would have dedicated teams to support complainants and duty holders alike.