SUBMISSION

illawarradisabilityalliance.org

Submission to the Review of the Disability Discrimination Act 1992

Submitted by: Illawarra Disability Alliance (IDA) Date: 21st October 2025 Contact: Edward Birt, Senior Policy Specialist

About Illawarra Disability Alliance (IDA)

The Illawarra Disability Alliance (IDA) is a group of NDIS registered, not-for-profit disability providers working together to deliver better outcomes for people with a disability in our community.

IDA aims are to:

Work collaboratively with people with disability, their carers, and across agencies and government to advocate for the rights of people with disability and promote inclusion.
Contribute to a strong functioning disability support network which proactively advocates for better outcomes for people with disability.
Represent the local region and support market stewardship by contributing to State and National policy discussions.
Ensure that as service providers we are well informed and supported.
Liaise with all levels of government on region specific issues (e.g., health, education, housing, NDIS, etc) in order to provide sound, timely advice that contributes to quality policy decisions.

Executive Summary

The Illawarra Disability Alliance (IDA) welcomes the opportunity to contribute to the review of the Disability Discrimination Act 1992 (DDA). This legislation, now over 30 years old, requires modernisation to better protect the rights of people with disabilities in contemporary Australia.

IDA strongly supports the intent behind the proposed reforms—particularly the introduction of a positive duty to eliminate discrimination. However, the group also raises concerns about implementation details that could result in unintended consequences.

IDA’s submission emphasises the need for proportional, practical approaches that drive meaningful outcomes rather than compliance-focused “tick-box” exercises.

(Note: Not all questions within the review paper are responded to within this submission however where responses directly relate to a particular question we have tried to include these in our submission as follows: (Q.1))

Key Recommendations

Implement proportional positive duty requirements scaled to organisation size and capacity.
Include the Convention on the Rights of People with Disabilities in the objects provision of the DDA.
Develop principles-based guidance rather than prescriptive compliance frameworks.
Establish disability workforce reporting requirements similar to the Workplace Gender Equality Act.
Provide comprehensive implementation guidance for inherent requirements assessments.
Strengthen disability standards enforcement with practical guidance for legacy compliance issues.
Enhance Australian Human Rights Commission oversight of disability action plans.

1. Amending the Definition of Direct Discrimination and implementing a Positive Duty

Recommendations 4.23, 4.27 & 4.28

IDA supports the proposed amendment to the definition of direct discrimination with the DRC recommended proposed changes to the elements and burden of proof. The IDA supports the adoption of a burden of proof for direct discrimination in the Disability Discrimination Act, as recommended by the Disability Royal Commission, similar to the burden of proof in the Fair Work Act, where the applicant must prove that the treatment occurred and the respondent must prove that the treatment was not based on the person’s disability. (Q.6).

IDA strongly supports the introduction of a positive duty to eliminate discrimination, recognising its potential to shift from reactive complaints-based approaches to proactive inclusion measures. We concur with the intent of this strategy “…to assist in preventing discrimination from occurring, rather than relying on complaints being put forward by people with disability to remedy the discrimination after it has occurred” (p.43). However, our consultation highlighted concerns about implementation.

Key Concerns and Recommendations

Proportionality is Essential

Consultation revealed concerns about the financial burden of positive duty requirements, particularly for smaller disability service providers operating under constrained funding models. Participants noted that sexual harassment positive duty requirements have resulted in substantial compliance costs associated with training and other activities that may not represent the best use of limited resources (Q.13).

Recommendation: Implement a proportional tiered approach to positive duty requirements (as articulated on page 42 of the issues paper), with organisational obligations proportional to:
- Organisation size (by employee numbers).
- Available resources.
- Sector context (public vs private).
- Risk profile.

Focus on Meaningful Outcomes

Participants emphasised the risk of positive duty becoming another “tick-box” exercise without genuine impact on discrimination prevention.

Recommendation: Develop compliance measures that assess impact on discrimination prevention rather than process or task completion. This should include regular review mechanisms to evaluate effectiveness.
Recommendation: Develop principles-based standards that allow organisations to implement positive duty requirements contextually, rather than prescriptive one-size-fits-all approaches.
Recommendation: Priority Application Areas: IDA recommends prioritising positive duty application in:
- Public service agencies.
- Transport services.
- Educational institutions.
- Large employers (100+ employees).

2. Inclusion of the Convention (UNCRPD)

Recommendations 4.33 & 4.34
Recommendation: IDA strongly supports the inclusion of the Disabilities Convention in the objects provision of the DDA to clarify and strengthen the link between the two and support Australia’s international human rights obligations and fulfill our obligations under international law (Q.10).

3. Inherent Requirements of Employment Roles

Recommendations 7.26

While there was support expressed for the DRC approach to requiring the inherent requirements provision to have the two additional factors considered as mentioned in the paper (p.56) - the ‘nature and extent of any adjustments made’ and the ‘extent of consultation with any person with disability concerned’. There was also concern about the realistic likelihood of inherent requirements provisions continuing to be a significant barrier to employment for many people with disability.

Key Risks Identified

Potential for Discriminatory Use

Participants expressed concern that inherent requirements, despite the two factors, can still be used to exclude people with disabilities. A role typically contains multiple tasks many of which may be inherent requirements, with others that may be only desirable or aspects that can be attended to by other team members. The ability to assess these components of a role takes expertise and people with disabilities may be able to perform many but not all requirements, potentially leading to blanket exclusions due to being unable to fulfill certain identified requirements which may not be inherent to the role.

Consultation Burden

The proposed requirement for employers to consult with prospective employees about inherent requirements may also lead to challenges for employers, whereby disability may be seen as an additional administrative burden and potentially making them reluctant to engage with candidates with disabilities due to the additional resourcing required to progress.

Complexity in Practice

Many work environments frequently involve factors beyond employer control (client premises, public locations, building sites, regulatory requirements), making it difficult to determine where responsibility for reasonable adjustments lies.

Recommendations (Q.20.22):
- a. Provide clear and comprehensive guidance on what constitutes genuine inherent requirements for a position versus general job tasks.
- b. Emphasise adaptability and consultation rather than rigid requirement lists.
- c. Focus on essential functions rather than comprehensive task inventories.
- d. Include safeguards to prevent misuse of inherent requirements as discrimination tools.
- e. Clarify responsibility allocation when workplace accessibility involves multiple parties.
Recommendation: IDA also recommends the inclusion of reference to job carving approaches in guidance where parts of a job may be able to be performed but other aspects may not be able to be fulfilled due to an applicant’s disability. The approach to inherent requirements outlined in the paper may discourage job carving, that is, the identification of aspects of a role that may be suitable to be completed by a person with disability who may not be able to fulfill all the inherent requirements, leaving out those parts of the job that they may be unable to perform.

4. Supported Employment Award Intersection

Part 5 - Exemptions

The consultation identified a potential conflict between strengthened DDA provisions and the Supported Employee Award, which provides a legal framework for employment at wages below minimum wage rates. This consultation is taking place at the same time as DSS have been conducting a review of Supported Employment which is not yet finalised with the way forward being established.

Recommendation: Consider specific temporary exemptions in relation to supported employment and conduct targeted consultation on the intersection between DDA reforms and DSS plans in relation to supported employment arrangements to ensure reforms do not inadvertently undermine supported employment opportunities.

5. Disability Action Plans

Part 6 - Modernising the DDA

The consultation raised questions about the effectiveness of traditional Disability Inclusion Action Plans (DIAPs), noting they often become compliance exercises without meaningful impact. These plans often sit external to other strategic documents and have little focus in terms of review or reporting to determine their effectiveness.

Proposed Alternative: Embedded Reporting Requirements

Recommendations: Rather than relying solely on standalone action plans, embed disability considerations into core standard organisational operating business processes through requirements including:
- a. Mandatory disability workforce reporting similar to the Workplace Gender Equality Act requirements.
- b. Integration into recruitment processes with standardised accommodation and adjustment inquiry procedures.
- c. Regular accessibility auditing of core service delivery areas.
- d. Outcome-based reporting on disability inclusion metrics.
- e. Requirement for advisory / reference groups involving lived experience input to drive accessibility and inclusion. (Q.41).

Benefits of this Approach:

Drives action through accountability rather than planning.
Reduces stigma through normalised disclosure processes.
Provides benchmarking data for organisational improvement.
Links to existing workforce reporting frameworks.
Potentially improves workers’ compensation disclosure practices.
Benefits organisations and individuals through valuing lived experience.

Enhanced AHRC Role

Recommendation: Expand Australian Human Rights Commission functions to:
- Publish comparative organisational performance data.
- Provide targeted guidance based on sector performance.
- Correlate action plan commitments with employment outcome data. (Q.42)

6. Disability Standards Enforceability

Part 6 - Modernising the DDA

Support Enhanced Enforcement

IDA supports strengthened enforcement of disability standards, particularly for:

Transport accessibility.
Educational access.
Premises standards.

Implementation Guidance Needed

Recommendation: Provide comprehensive guidance for organisations operating in non-compliant legacy premises or systems, including:
- Transition timeframes for compliance.
- Interim accessibility measures.
- Cost-sharing arrangements for multi-tenant situations.
- Appeals processes for undue burden claims (Q.45).

Building Code Intersection

Recommendation: Address the intersection between disability discrimination obligations and building code requirements that may limit accessibility improvements for existing premises (Q.45).

7. Implementation Support and Guidance

Part 7 - Further Options for Reform

Comprehensive Guidance Packages Required

Recommendation: Given the complexity and potential impact of the proposed reforms, IDA recommends development of strengths based and positive:
- a. Sector-specific implementation guides.
- b. Case study examples of good practice.
- c. Legal interpretation guidance for complex intersection issues.
- d. Transition support for organisations with legacy compliance challenges.
- e. Regular review mechanisms to assess reform effectiveness (Q.49).

Avoiding Perverse Outcomes

The consultation consistently highlighted risks of well-intentioned reforms creating barriers to disability inclusion. All implementation guidance should be developed with disability community input and tested for potential negative consequences.

Concluding Remarks

The DDA review represents a crucial opportunity to strengthen disability rights protection in Australia. However, our consultation highlighted risks that poor implementation could undermine these goals through creating barriers to employment, excessive compliance burdens, and tokenistic responses.

IDA urges the Attorney-General’s Department to prioritise:

Proportional implementation approaches.
Comprehensive guidance development.
Ongoing consultation with disability services sector.
Regular review of reform effectiveness.
Focus on meaningful outcomes over process compliance.

We look forward to continued engagement in this important reform process and would welcome the opportunity to provide further input on draft legislation or implementation frameworks.

This submission reflects consultation with IDA members representing diverse disability service providers across Southern NSW. We acknowledge that implementation details will be crucial to achieving the intended goals of enhanced disability rights protection.

Edward Birt

Senior Policy Specialist