Review of the Disability Discrimination Act 1992 Consultation Paper Response

REVIEW OF THE DISABILITY DISCRIMINATION ACT 1992

CONSULTATION PAPER RESPONSE

ATTORNEY GENERAL’S DEPARTMENT

OCTOBER 2025

ACKNOWLEDGEMENT OF COUNTRY

We respectfully acknowledge the traditional custodians of the land on which we live, work, and meet. We pay our respects to Elders past, present, and emerging.

We recognise their enduring connection to their land, waters, and skies and honour their rich cultural heritage and knowledge systems.

We commit to listening, learning, and standing in solidarity with Aboriginal and Torres Strait Islander peoples, walking alongside them in the ongoing journey towards justice and reconciliation.

Contact for this submission:

redacted: s47F - personal privacy

redacted: s47F - personal privacy

MULTICULTURAL DISABILITY ADVOCACY ASSOCIATION www.mdaa.org.au

Review of the Disability Discrimination Act 1992

About MDAA

The Multicultural Disability Advocacy Association of NSW (MDAA) is the peak body in NSW for all people with disability (PWD) and their families and carers with a particular focus on those from multicultural backgrounds.

Our vision is a society where everyone regardless of background or disability feels welcomed, included and supported.

Our aim is to promote, protect, and secure the rights and interests of people with disabilities.

MDAA works within a cultural sensitivity framework to ensure the safety, comfort, and well-being of our diverse consumers.

At MDAA, we provide support in the form of Individual Advocacy, with the aim to build the capacity of multicultural people with disability and ensure that the rights of individuals are promoted, protected, and secured.

MDAAs other services include Systemic Advocacy, NDIS Appeals and Reviews, and ongoing projects including The Aged Care Volunteer Visitor Scheme (ACVVS).

About this Submission

MDAA welcomes the opportunity to provide this submission in response to the Attorney General’s Departments Issue Paper: Disability Discrimination Act 1992 Review (DDA).

As an organisation that has long advocated for the rights of people with disability from diverse cultural backgrounds, MDAA welcomes the opportunity to contribute to this important reform process. This review is an important step toward strengthening protections, ensuring that anti-discrimination laws remain effective and inclusive, and reflecting the evolving understanding of disability rights in Australia. Through our submission, MDAA aims to highlight the ongoing barriers faced by people with disability, particularly those from multicultural communities, and to ensure that their voices and lived experiences inform future improvements to DDA.

Simplifying the definition of Direct and Indirect Discrimination

It is MDAA’s view that the current definitions of direct and indirect discrimination within DDA can be complex and difficult to navigate, particularly for individuals seeking to assert their rights. The burden of proof is often placed on the person with disability, requiring them to continually justify and defend their right to equitable participation and inclusion. This process can be exhausting and discouraging, especially when individuals are already facing systemic barriers. MDAA recommends that the comparator test be removed, as it imposes an unnecessary procedural hurdle that makes it harder for people with disability to pursue a complaint or report discrimination.

Further, the review should ensure that any revised definitions and mechanisms within DDA recognise intersectionality, acknowledging that discrimination is often compounded for people with disability who are also from multicultural or other marginalised backgrounds. Strengthening DDA in this way would better reflect the lived realities of people who experience multiple and overlapping forms of discrimination.

Interpretation of ‘Reasonable Adjustments’

The current interpretation of reasonable adjustments under DDA is often viewed through the lens of what is ‘reasonable’ for the organisation, workplace, or institution, rather than focusing on the impact for the person with disability. This approach can lead to inconsistent and inequitable outcomes.

MDAA recommends that DDA clarify that the primary consideration in determining reasonableness should be the impact on the person with disability. If an adjustment has a positive impact for the person with disability and a positive or neutral impact for other participants, then the adjustment should be provided as requested. No other considerations, such as administrative convenience or subjective perceptions of burden, should override the right of the person with disability to equitable participation and inclusion.

Intersectional Discrimination

It Intersecting discrimination claims should be explicitly recognised and valid under DDA, with clear mechanisms for individuals to pursue complaints based on multiple and overlapping factors. It is often difficult for a person with multiple intersecting identities, such as disability, cultural background, gender, or visa status, to pinpoint a single cause of discrimination, as these factors compound and interact in complex ways.

The current use of the comparator test fails to capture these intersecting experiences as they are inherently limited, relying on narrow, one-dimensional comparisons that overlooks the cumulative and compounding effects of discrimination. If comparator tests are to remain, complainants must have the right to define how their identities are represented and analysed in the process. They should be able to include any relevant factors: for example, where a respondent is aware of a complainant’s visa status or Centrelink entitlements and uses this information to dissuade them from asserting their rights.

The burden of proof should rest with the respondent, not the complainant. People with disability, particularly those from multicultural backgrounds, already face significant systemic barriers to accessing justice. To ensure fairness and accessibility, every complainant should also be provided with an advocate or support person during and after the complaint process.

Alignment of the Disability Discrimination Act (DDA) with the Convention on the Rights of Persons with Disabilities (CRPD)

DDA predates Australia’s ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and, as such, does not fully reflect the human rights model of disability reflected in the CRPD. While the CRPD recognises disability as a social construct, consistent with the social model, DDA continues to rely heavily on a medical model that defines disability in terms of impairment and deficit rather than systemic barriers.

The language and definitions in DDA remain outdated. Terms such as ‘malformation, ‘malfunction, ‘disfigurement,’ and ‘disturbed’ are deficit-based and inconsistent with contemporary understandings of disability and neurodiversity. The current definition of disability assumes a ‘normal state of being,’ which reinforces the notion that the issue lies within the individual rather than society’s lack of accessibility and inclusion.

To bring DDA in line with the CRPD, the legislation should adopt a fully social and rights-based model that recognises that barriers are created by inaccessible environments, exclusionary systems, and discriminatory attitudes, not by a person’s body or mind. This includes modernising the definition of disability and neurodiversity to reflect current research, inclusive practice, and lived experience.

The ‘comparator test’ mentioned earlier in this submission, which requires a complainant to prove that discrimination would not have occurred if they did not have a disability, further entrenches the medical model by focusing on individual impairment rather than systemic inequity. As identified by the Disability Royal Commission (2023), this test is a significant barrier to pursuing justice. Alternative approaches such as the ‘But For’, ‘Material Contribution’, or ‘Motivating Factor’ tests should be considered, as these better capture the reality of discrimination and the complex, cumulative factors that contribute to it.

An Act that aligns with the CRPD must be forward-looking, inclusive, and grounded in the lived experiences of people with disability. It should promote dignity, equality, and participation, not merely protection from harm.

Consultation Questions

How should disability be described in DDA?

Disability should be defined as a physical, cognitive, neurological, or sensory ‘difference’ that is exacerbated by society’s inaccessibility of infrastructure, systems, and services.

The term difference is preferred over impairment because it emphasises diversity rather than deficit, framing disability as a natural variation in human experience rather than a flaw or limitation. While impairment focuses on an individual’s functional limitations, difference highlights that the barriers people with disability face are primarily social and environmental.

Using difference aligns with the social and human rights model of disability, reinforcing that it is society’s inaccessibility and lack of inclusion: not the individual, that creates disadvantage. This language encourages a more empowering, inclusive approach and reduces the risk of stigma or deficit-based assumptions that the term impairment can unintentionally reinforce.

What factors should be considered in developing a new definition of disability?

• Remove deficit-based language used to define and describe people with disability, like ‘impairment.’ The definition should reflect a social and human rights model, focusing on barriers created by society rather than individual limitations.
• Ensure children are explicitly included within the definition, recognising their rights under the UN Convention on the Rights of the Child and the CRPD. Children with disability must be afforded equal protection, participation, and voice in decisions affecting them.
• Adopt modern, inclusive language that accurately reflects current understandings of neurodiversity, mental illness, and psychosocial disability.
• Properly include mental illness and neurodivergence in the definition of disability to ensure equal recognition and protection under the law.
• The definition should recognise disability as dynamic and diverse, allowing for multiple and intersecting factors, including temporary or episodic conditions, to be considered.

Would the DDA be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes?

Yes. The DDA would be significantly strengthened by expressly allowing claims based on multiple or combined protected attributes, such as disability, race, sexuality, gender, age, or visa status. People with disability often experience intersectional discrimination, and forcing them to base a claim on only one protected attribute does not reflect the complexity of real-life experiences.

DDA should also extend beyond the current list of protected attributes to allow individuals to bring claims on other grounds they believe are relevant to their experience of discrimination. This flexibility would ensure that the law better reflects the lived realities of people with multiple, compounding vulnerabilities. It is also important to ensure no one is left behind.

Could any other changes be made to the DDA to recognise and provide protection for people with disability who have intersecting identities, or to address compounding discrimination?

Yes. The DDA should explicitly recognise and protect people with intersecting identities, including those from multicultural backgrounds, Aboriginal and Torres Strait Islander peoples, and people with diverse sexualities and genders.

As mentioned earlier, current approaches, such as the comparator test, fail to capture the compound effects of intersectional discrimination. The law should shift towards models that acknowledge the interplay of multiple factors and ensure that people with disability are supported to articulate how these intersections shape their experiences.

Complainants should also be provided with access to advocates, informative resources and/ or support persons throughout and after the complaint process to ensure equitable participation.

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 comparator test should be replaced or significantly revised, as it creates unnecessary barriers for complainants and fails to reflect the realities of discrimination. Alternative tests such as the “But For,” “Material Contribution,” or “Motivating Factor” tests provide clearer and fairer frameworks by focusing on the respondent’s conduct rather than forcing the complainant to prove hypothetical comparisons.

The comparator test requires a complainant to show that a person without a disability would have been treated differently in the same situation. This can be complex, artificial, and burdensome, particularly for people with intersecting identities or those experiencing subtle or systemic discrimination.

Replacing or revising the comparator test with alternatives such as the “But For,” “Material Contribution,” or “Motivating Factor” tests provides more practical and equitable ways to assess discrimination. Examples of each are included below:

• But For Test: This test examines whether the adverse treatment would have occurred but for the person’s disability. If the answer is no, discrimination is established. It focuses on the actual cause of the harm, rather than comparing the complainant to a hypothetical person.
• Material Contribution Test: This test allows a complainant to show that their disability materially contributed to the discriminatory outcome, even if it was not the sole cause. It recognises that discrimination often has multiple contributing factors, particularly in complex or systemic contexts.
• Motivating Factor Test: This test assesses whether the complainant’s disability was a motivating factor behind the respondent’s conduct. It captures the intent or influence of bias, allowing for discrimination to be recognised even when other factors are involved.

Using these alternatives shifts the focus from the complainant having to construct hypothetical comparisons to the respondent’s actions and motives, reducing stress and barriers for complainants. It also better accommodates intersectional discrimination and complex real-world scenarios, making the DDA more aligned with contemporary human rights principles.

A hybrid model could also be considered: one that allows flexibility depending on the circumstances of the complaint. This approach would maintain accessibility and fairness for people with disability while ensuring clarity for duty holders. The test should ultimately be simple, inclusive, and rights-focused, ensuring that the onus does not fall unfairly on the person with disability.

How should the burden of proof be addressed in the DDA?

The burden of proof should be transferred from the complainant to the respondent: that is, the individual, organisation, or institution the complaint is about. Under the current system, people with disability bear the responsibility of proving they have been discriminated against, which causes unnecessary stress and further disadvantage. Many face significant barriers to collecting evidence, particularly when discrimination occurs subtly or informally, such as being refused an interview, denied a service, or excluded from participation without explicit justification.

People with intersecting identities, such as those who are both people with disability and Aboriginal or Torres Strait Islander, often experience discrimination that stems from multiple and overlapping factors. The DDA should recognise this complexity and enable complainants to pursue more than one form of discrimination simultaneously, rather than forcing them to choose which ground to act upon.

In practice, respondents should be required to provide clear and detailed evidence explaining why an action or decision was not discriminatory. Common rebuttals such as ‘we can refuse service to anyone’ or ‘the decision was based on other factors’ should no longer be accepted without substantiation. This shift would create a more equitable process and ensure accountability from those in positions of power, aligning the DDA more closely with the principles of fairness and access to justice.

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?

• Remove the ‘comply point’ from the definition.
• The current wording implies that people with disability are somehow responsible for their inability to overcome barriers, reinforcing a medical model of disability that focuses on individual deficits rather than the societal and systemic barriers that create disadvantage.
• Removing this language would shift the focus onto duty holders to identify, prevent, and eliminate discriminatory practices, making the concept of indirect discrimination easier to understand and apply in practice for both complainants and organisations.

Interpretation of ‘Not Indirect Discrimination’

The current language outlining situations that are considered ‘not indirect discrimination’ is unclear and raises several questions about its intended application:

• Option 1: Avoiding discrimination would impose an unjustifiable hardship
• It is unclear on whom the hardship is measured: is it the organisation or service that should be providing accessibility, or the person with disability? Placing the burden of ‘hardship’ on the complainant risks undermining the purpose of DDA and reinforces a deficit-focused model.

• Option 2: Requirement is a reasonable condition or based on guiding factors

• The term ‘guiding factors’ is vague and undefined. If a requirement is reasonable but still results in exclusion or disadvantage, it seems this could constitute indirect discrimination, raising questions about how such scenarios are distinguished in practice.

• Option 3: Requirement is legitimate and proportionate

Even when a requirement is legitimate or proportionate, it may still have the effect of disadvantaging people with disability, which is the essence of indirect discrimination. The current wording creates ambiguity about why such cases would be exempt from consideration.

The current options create uncertainty for both complainants and duty holders, making it difficult to determine what counts as indirect discrimination and what does not. Clearer guidance is needed to ensure the definition is applied consistently and aligns with the social and human rights model of disability.

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

a. Removed

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

c. Replaced by a legitimate and proportionate test

d. Other

The concept of ‘reasonableness’ in the current definition of indirect discrimination is unclear and raises several critical questions:

• Reasonable based on whom and what?

The current wording does not specify whether reasonableness is measured from the perspective of the organisation, employer, or duty holder, or whether it considers the impact on the person with disability. This ambiguity can allow duty holders to justify discriminatory practices under the guise of ‘reasonableness,’ undermining the protections intended by DDA.

• Legitimate and proportionate test

If the reasonableness element were replaced with a legitimate and proportionate test, clear guidance would be needed:

• Legitimate should be defined in terms of lawful, necessary, and non-discriminatory objectives, rather than organisational convenience.
• Proportionate should consider practical and equitable measures to accommodate a person’s needs, including financial costs, individual capacity, and accessibility requirements, without creating room for indirect or direct discrimination.

• Example

The Australian Human Rights Commission (2012) provides a clear illustration: if the only access to a building is via stairs, people using wheelchairs cannot enter. Similarly, parents with prams, delivery workers, and elderly people may be excluded. Accessibility improvements for people with disability often benefit everyone, demonstrating that removing barriers does not disadvantage others but promotes inclusion.

MDAA recommends that any test used in the DDA focus primarily on the impact for people with disability, rather than the convenience or cost for duty holders. Accessibility for one group should be seen as a positive change for all, reinforcing the social model of disability and ensuring that indirect discrimination protections are meaningful and enforceable.

Examples of Legislative Provisions That Could Modernise or Strengthen the DDA

DDA could be modernised by drawing on existing Commonwealth, state, and territory anti-discrimination laws that adopt contemporary, rights-based approaches. For example, Queensland’s Anti-Discrimination Act 1991 explicitly requires reasonable adjustments to ensure access to education, employment, and services, while South Australia’s Children and Students with Disability Policy guarantees that children with disability can participate fully in education settings. Victoria’s recent anti-vilification and social cohesion laws provide protections against discrimination and harm based on disability and other attributes, reinforcing accountability for organisations and institutions.

The National Disability Insurance Scheme (NDIS) Act 2013 and the Early Childhood Early Intervention (ECEI) approach further emphasise early support and inclusion for children with disability, ensuring they can access services and participate in society on an equal basis. By incorporating elements from these frameworks, the DDA can be strengthened to better reflect the UN Convention on the Rights of the Child, promote inclusion, and uphold the rights and wellbeing of children with disability.

Additionally, DDA could be modernised by drawing on provisions from other Commonwealth, state, and territory anti-discrimination laws that embed contemporary, rights-based approaches. In particular, legislation that explicitly recognises children’s rights and protections under the UN Convention on the Rights of the Child could guide updates to ensure the DDA safeguards the inclusion and wellbeing of children with disability.

Other Issues to Consider in the Review of DDA

• Children’s Inclusion:

Children with disability must be explicitly recognised within DDA, reflecting the rights outlined in the UN Convention on the Rights of the Child. Current legislation largely overlooks these protections, particularly in education, where segregation in ‘special schools’ can adversely affect wellbeing, sense of self, and equitable access to learning (Bruin, Poed & Jackson, 2023). The language and policies in some jurisdictions, including Victorian education frameworks, continue to use terms such as ‘special schools’, perpetuating exclusion.

• Fundamental Rights and Accountability:

The DDA affirms that people with disability have the same fundamental rights as all members of the community. It aims to hold organisations and institutions accountable for discrimination and denial of access. However, safeguards are often insufficient, particularly in aged care, where many elderly people with disability experience systemic neglect and abuse. Investigations by the Aged Care Complaints Commission have frequently failed to uphold justice, as highlighted in the Four Corners documentary and the findings of the Aged Care Royal Commission.

• Alignment with the CRPD:

The DDA predates Australia’s ratification of the CRPD and reflects outdated societal values. Protections for inclusive education, equitable access, and participation remain inadequate. While DDA nominally meets the CRPD’s non-discrimination requirements (Bruin, Poed & Jackson, 2023), in practice, access and support are limited, and segregation of children with disability persists.

• Reasonable Adjustments:

The interpretation of ‘reasonable adjustments’ is a major area of concern. Currently, adjustments are often assessed based on what is reasonable for the provider: whether a school, employer, accommodation, or service organisation, rather than the impact on the person with disability (Roy, 2023). The burden of proof remains on the individual, forcing people with disability to fight continuously for their rights. This approach allows organisations to reject adjustment requests based on their own preferences, rather than ensuring meaningful inclusion and participation.

• Perpetuation of Inequity:

Evidence suggests that the DDA, in its current form, may reinforce the inequities it seeks to address (Roy, 2023). Overlaps between discrimination in education, aged care, and other sectors, as highlighted by the Disability Royal Commission and the Aged Care Royal Commission, underscore the need for substantial reform.

• Intersectional Considerations:

The review should also consider multiple, intersecting forms of discrimination, including age, disability, cultural background, and socio-economic status. Current provisions fail to adequately recognise how overlapping vulnerabilities compound exclusion and disadvantage.

Final Remarks

In reviewing DDA, while the legislation has provided important protections for people with disability, significant reforms are needed to ensure it is fit for purpose today.

MDAA recommends a modernised approach that fully embraces the social and human rights models of disability, recognises intersectional experiences, and prioritises the perspectives and voices of people with disability in all aspects of decision-making. This includes clarifying definitions, strengthening protections for children and those with intersecting identities, shifting the burden of proof onto respondents, and ensuring reasonable adjustments are genuinely centred on the needs of people with disability.

By drawing on contemporary Commonwealth, state, and territory frameworks, and aligning more closely with the CRPD, DDA can become a more effective tool to promote inclusion, equity, and participation for all Australians with disability. MDAA strongly urges that the review prioritise these reforms so that DDA not only prevents discrimination but actively fosters a society where every person with disability can participate fully, confidently, and equally.

References

Roy, D. (2023, October 4). Here’s why we need a disability rights act - not just a disability discrimination one. The Conversation. https://theconversation.com/heres-why-we-need-a-disability-rights-act-not-just-a-disability-discrimination-one-214715

Bruin, K. d., Poed, S., & Jackson, R. (2023). Performance of Australia’s Disability Standards for Education 2005: A policy analysis and evaluation. International Journal of Inclusive Education, 28(14), 3533-3553. https://doi.org/10.1080/13603116.2023.xxxxx (if DOI available; otherwise omit)

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (DRC). (2023). Executive summary: Our vision for an inclusive Australia and recommendations. Commonwealth of Australia. https://disabilityroyalcommission.gov.au/system/files/2023-11/Final%20report%20-%20Executive%20Summary%2C%200ur%20vision%20for%20an%20inclusive%20Australia%20and%20Recommendations.pdf

Australian Human Rights Commission (AHRC). (2012). Know your rights about disability discrimination and harassment. https://humanrights.gov.au/our-work/disability-rights/know-your-rights-about-disability-discrimination-and-harassment#:~:text=This%20is%20called%20'indirect%20discrimination,.unable%20to%20enter%20the%20building