NDIA Accountability Project

Submission regarding inherent requirements and adjustments under the Disability Discrimination Act

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Submission to the Review of the Disability Discrimination Act 1992 (Cth)

Inner City Legal Centre

22 October 2025

Inner City Legal Centre ABN 56 001 782 805

Gadigal Country redacted redacted redacted

iclc.org.au Email: redacted Phone: redacted

The Inner City Legal Centre is a not-for-profit community legal centre offering free legal services to residents of Sydney’s inner city, eastern, and northern suburbs. It also provides specialised support to the LGBQTI+ community, trans and gender diverse individuals, sex workers, and offers employment law advice across all of New South Wales.

The ICLC provides an inclusive, and affirming legal advice tailored to the unique needs of LGBTQI+ people in NSW. Our goal is to equip community members with the knowledge and clarity needed to make informed legal decisions.

The ICLC offers free, statewide access to legal assistance for transgender and gender diverse people. Our mission is to empower trans communities through advice and education. We provide essential legal guidance on matters such as how to legally change your name, update gender markers, and discrimination.

At the ICLC, we believe that sex workers should be free to work without harassment, discrimination, or exploitation. Our sex worker-friendly solicitors provide free legal advice to sex workers across NSW regardless of migration status, employment status, or income.

The ICLC offers free, confidential, employment-related legal advice to our local community and through the state-wide Employment Rights Legal Service. This service is provided as a collaboration between Kingsford Legal Centre, the ICLC and Redfern Legal Centre.

Contact

redacted (She/Her), Principal Solicitor
The Inner City Legal Centre
redacted
redacted
redacted
redacted

The Inner City Legal Centre acknowledges the Gadigal people of the Eora nation, who’s land our office is based on. We pay respects to their Elders – past, present and emerging. Sovereignty was never ceded. Always was, always will be, Aboriginal Land.

1. RECOMMENDATIONS

Recommendation 1

(a) That the definition of ‘disability’ in section 4 of the Disability Discrimination Act 1992 (Cth) (‘DDA’) be amended to state that persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others; (b) That additional provisions be included in the DDA that takes into account unlawful conduct concerning a person’s ‘health status’ and ‘irrelevant medical record’.

Recommendation 2

(a) That the comparator test contained in the DDA be removed; (b) That the “reasonableness” component of the indirect discrimination test be replaced with a “legitimate and proportionate” test; (c) That the DDA be amended to shift the burden of proof from the complainant to the respondent to show that the unfavourable treatment was not because of the complainant’s protected attribute; and (d) That any revised or reviewed test for discrimination under the DDA acknowledge intersectionality and systemic discrimination.

Recommendation 3

(a) That the DDA introduces a positive duty for employers and persons conducting a business or undertaking to eliminate discrimination, harassment and vilification on the basis of disability. (b) that consideration be given to including a liability provision for artificial intelligence or computer systems to ensure that their use must comply with anti-discrimination laws

Recommendation 4

That the DDA be amended to include a positive and express obligation for employers, educators, providers of goods and services, and others to provide adjustments for a person with disability (temporary or ongoing).

Recommendation 5

That section 11 of the DDA be amended to include two additional factors in determining whether a hardship imposed on a person would be an unjustifiable hardship, being (a) how much the person with disability has been consulted; and (b) what alternative options were available to remove or reduce hardship.

(a) That the current provisions around the inherent requirements of a role exception in the DDA be reviewed; (b) That the DDA be amended to include two additional factors in determining whether a prospective or existing employee would be able to carry out the inherent requirements of particular work:

  • i. the nature and extent of any adjustments made; and
  • ii. the extent of consultation with any person with disability concerned (c) That any amendments made to the provisions around the inherent requirements of a role exception in the DDA:
  • i. be aligned with any introduction of a positive obligation to make adjustments for a person with a disability; and
  • ii. strengthen employee protections when faced with excessive or inappropriate requests for medical information from their employer, including but not limited to clarification that only the minimum and relevant medical information that is necessary to determine whether an employee can perform the inherent requirements of their role is required to be provided.

2. INTRODUCTION

The ICLC welcomes the opportunity to make a submission to the review of the DDA and supports the redrafting of the DDA to reflect contemporary best practice and better promote equality across the country.

The ICLC is a community legal centre with a long history of involvement in matters that sit within the DDA’s jurisdiction. In particular, most of our clients identify as part of the disabled, LGBTQIA+, sex worker, culturally and racially marginalised communities, and so, are not only experiencing significant levels of financial disadvantage, but are also overwhelmingly likely to experience discrimination.

We note that the ICLC is a chronically underfunded, frontline community legal service with no dedicated policy staff. Any errors or omissions in this submission are the result of us trying to balance our role in responding to our communities, who are often in crisis, with our commitment to supporting reform and improvement of the laws that impact our clients and our community. The ICLC has not responded to all questions posed in the consultation paper. We have focused on questions relevant to our work as a Community Legal Centre and the services we provide.

We would warmly welcome increased funding from the Federal Government that would support our capacity to fully and thoroughly participate in important reviews such as this one.

We would like to express our sincere thanks to and acknowledge all the volunteer lawyers, PLT students and ICLC staff who contributed to this submission. Without them this submission would not have been possible.

3. DEFINITION OF ‘DISABILITY’

The ICLC supports amending the definition of “disability” contained in section 4 of the DDA to be aligned with the definition under the Convention on the Rights of Persons with Disabilities, i.e. that persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. This would ensure that the broadest range of health conditions are covered by the definition.

We also support stakeholders who have suggested that “disability” is not the appropriate terminology to reflect the lived experiences of those, for example, with HIV or other mental and/or psychosocial disabilities. We would support additional provisions in the DDA that take into account unlawful conduct concerning a person’s ‘health status’ and ‘irrelevant medical record’.

Recommendation 1: (a) That the definition of ‘disability’ in section 4 of the DDA be amended to state that persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others; (b) That additional provisions be included in the DDA that takes into account unlawful conduct concerning a person’s ‘health status’ and ‘irrelevant medical record’.

4. DIRECT AND INDIRECT DISCRIMINATION

The ICLC supports a review of the current tests for discrimination under the DDA, which are considered complex and confusing. The DDA is intended to promote equality in society and provide redress for communities facing additional disadvantage on account of disability.

Given this, we support the following amendments to be made to the tests for discrimination under the DDA:

  • the removal of the comparator test for direct discrimination, to be replaced with a test focusing on whether a person has experienced unfavourable treatment because of their disability;
  • replacing the “reasonableness” element of determining indirect discrimination with a “legitimate and proportionate” test;
  • shifting the burden of proof from the complainant to the respondent to show that the unfavourable treatment was not because of the complainant’s disability, in line with adverse action provisions under the Fair Work Act 2009 (Cth); and
  • recognising that any test for discrimination must acknowledge intersectionality and systemic discrimination.

Comparator test

The comparator test for direct discrimination is enshrined in section 5(1) of the DDA, requiring a comparison of the person experiencing discrimination with a hypothetical comparator who does not have the disability but is otherwise in the same situation.¹ The comparator test:

  • requires imagining a non-disabled person in a situation that only arises because of disability;
  • allows parties to dispute what the “materially similar” circumstances are, leading to inconsistent outcomes; and
  • diverts attention from the real issue—whether a person was treated less favourably by another person or organisation by reason of their disability.

By contrast, a test focusing on unfavourable treatment would centre the lived experience of the person with a disability; avoid artificial comparisons; and align with the objectives of the DDA.

Burden of proof

The Equality Act 2010 (UK) model offers a robust and balanced framework that could ensure the DDA is effectively applies to disability discrimination across all areas of public life, while also filtering unmeritorious or vexatious claims.

Crucially, the burden-shifting mechanism contained in the UK model enhances access to justice by recognising the evidentiary challenges claimants often face. Requiring the claimant to first establish a prima facie case, before shifting the burden to the respondent,

¹ Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92.

strikes an appropriate balance between protecting against frivolous claims and uncovering genuine instances of discrimination, particularly those that are unconscious or systemic.

This was acknowledged in the UK case of Barton,² where the Court noted:

“It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.”

Such reasoning highlights the value of an inference-based model as it allows tribunals to consider circumstantial and contextual evidence, thereby exposing unconscious or covert discriminatory practices that would otherwise remain unaddressed. This is especially important in public life, where decision-making power often lies with institutions capable of masking discriminatory outcomes beneath ostensibly neutral policies, as well as restricting access to objective evidence that would assist in the advancement of legitimate claims.

Moreover, the UK approach aligns with other international human rights jurisdictions including the European Union, and Canada. Its efficacy has been endorsed domestically. Both the ACT Law Reform Commission and the Consolidation of Commonwealth Discrimination Laws inquiry have recommended adopting this model in Australia.

CASE STUDY 1

The ICLC assisted Alex* after he was dismissed from his job. Alex had recently had an asthma attack that required hospitalisation. When he tried to return to work, his employer objected and directed Alex to obtain further, more detailed information from his specialist to confirm he could safely return to work. Alex’s treating specialist confirmed he could perform the inherent requirements of his role, as long as he didn’t lift any heavy items for three months, after which he could resume full duties. His employer disputed this again and directed him to attend an independent medical examination, which largely corroborated the opinion of Alex’s specialist.

Despite this, Alex was without pay for a month and ultimately dismissed on the basis that he could not perform the inherent requirements of his role.

Alex’s case is a helpful example of the impracticality of the test imposed by section 5(1) of the DDA. The hypothetical person in Alex’s case would be someone who does not have a disability; has taken unexpected, prolonged leave; and requires temporary adjustments before resuming full duties.

However, such circumstances rarely arise where the person does not have a disability. If a non-disabled employee took sudden leave and returned unable to perform all duties, inherent or not, their dismissal might well be justified. But when these circumstances stem from a disability, the law should protect—not penalise—the employee. The comparator test risks legitimising the dismissal by comparing the disabled employee to a hypothetical person who would also be dismissed, thereby masking the discriminatory impact of failing to accommodate disability-related needs.

*name changed for privacy reasons

² Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332.

Recommendation 2: (a) That the comparator test contained in the DDA be removed; (b) That the “reasonableness” component of the indirect discrimination test be replaced with a “legitimate and proportionate” test; (c) That the DDA be amended to shift the burden of proof from the complainant to the respondent to show that the unfavourable treatment was not because of the complainant’s protected attribute; and (d) That any revised or reviewed test for discrimination under the DDA acknowledge intersectionality and systemic discrimination.

5. POSITIVE DUTY TO ELIMINATE DISCRIMINATION

Recognising the efforts of civil society and government and the Australian Human Rights Commission to review and modernise the Sex Discrimination Act 1984 (Cth) (SDA) and other state discrimination legislation, the ICLC recommends that the DDA introduces a positive duty for employers and persons conducting a business or undertaking to eliminate discrimination, harassment and vilification on the basis of disability.

This would have the effect of creating safe public spaces with disabled persons in mind, rather than relying on complaints or concerns being raised in order to elicit change. It would also create an overarching obligation on duty-holders to consider the impact of technology and artificial intelligence on the rights of people with disabilities, particularly workers, given the scope and growing understanding of discrimination and harm as a result of these systems and processes.³

Recommendation 3: (a) That the DDA introduces a positive duty for employers and persons conducting a business or undertaking to eliminate discrimination, harassment and vilification on the basis of disability. (b) that consideration be given to including a liability provision for artificial intelligence or computer systems to ensure that their use must comply with anti-discrimination laws.

6. POSITIVE DUTY TO PROVIDE ADJUSTMENTS

The ICLC supports the introduction of a positive and express obligation for employers, educators, providers of goods and services, and others to provide adjustments for a person with disability (temporary or ongoing) in the DDA.

In our work, we find it is common for organisations to disengage with concerns around disability discrimination when the argument of adjustments or accommodations are made, citing the lack of explicit requirement under the DDA or claiming that it would cause undue or unjustifiable hardship to provide those adjustments or accommodations. The Disability Royal Commission has raised a fair concern that the qualification of adjustments to be

³ Sheard, N. ‘Algorithm-facilitated discrimination: a socio-legal study of the use by employers of artificial intelligence hiring systems’ (2025) 52(2) Journal of Law and Society 269.

“reasonable” creates confusion amongst the community that an adjustment must not only satisfy some reasonableness or reasonable person test, but also that the adjustment does not create unjustifiable hardship.⁴ Recognising this is not how the current provisions in the DDA around adjustments have been interpreted by courts, it is entirely appropriate for references to “reasonable adjustments” in the DDA as well as any positive duty introduced to reference “adjustments” instead.

Following the decision in Sklavos,⁵ the need for a positive obligation for duty holders to provide adjustments is more imperative than ever and would allow people with a disability to be able to more fully and equitably participate in all areas of public life. Presently subsection 5(2) of the DDA only requires a person or organisation to make reasonable adjustments for a person with a disability in circumstances where the reason for the refusal of the adjustment would be the person’s disability.⁶ This interpretation allows organisations to make decisions based on a seemingly neutral analysis of cost and inconvenience without considering the impact of those decisions as well as existing power imbalances and structural inequalities facing people with disabilities.

CASE STUDY 2

The ICLC assisted Minh* who required assistance and advice after a lengthy battle with cancer left her unemployed. Minh, following treatment and on the advice of her oncologist, requested to return to work on a two-day-a-week basis, instead of her regular three days.

Her manager reviewed the medical certificate she had provided and informed Minh that she would need to resign, because her request couldn’t be accommodated. When Minh followed up by asking for some additional time off in that case, her employer dismissed her because she couldn’t perform the inherent requirements of her role. This was despite having worked for her employer for over twenty years.

*name changed for privacy reasons

Recommendation 4: That the DDA be amended to include a positive and express obligation for employers, educators, providers of goods and services, and others to provide adjustments for a person’ with disability (temporary or ongoing);

7. UNJUSTIFIABLE HARDSHIP

The ICLC supports the Disability Royal Commission’s recommendations around introducing additional factors in determining whether a hardship imposed on a person would be an unjustifiable hardship, under section 11 of the DDA. Specifically, the additional factors that should be introduced are:

  1. how much the person with disability has been consulted; and
  2. what alternative options were available to remove or reduce hardship.

In particular, introducing a factor that places weight on consideration of alternatives prevents organisations from “closing the door” on people with disabilities simply because the

⁴ Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023) vol 4, 309. ⁵ Sklavos v Australasian College of Dermatologists [2017] FCAFC 128. ⁶ Ibid, [44].

adjustment required or requested may create hardship. It also aligns with similar amendments made to the Fair Work Act 2009 (Cth) in the context of flexible working arrangements requests, which requires employers to genuinely try to reach agreement with their employee to accommodate the employee’s circumstances,⁷ as well as to set out what changes to the employee’s working arrangements could be accommodated.⁸

These factors would serve to reduce the risk of discrimination and stress the importance of agency in ensuring that people with disabilities are making decisions about their engagement in public life on just and equitable conditions.

Recommendation 5: That section 11 of the DDA be amended to include two additional factors in determining whether a hardship imposed on a person would be an unjustifiable hardship, being (a) how much the person with disability has been consulted; and (b) what alternative options were available to remove or reduce hardship.

8. INHERENT REQUIREMENTS OF PARTICULAR WORK

The ICLC broadly supports review of the current provisions in the DDA dealing with the inherent requirements of a particular role exception.

Employers concluding that their employee is unable to perform the inherent requirements of the role is the most common form of disability discrimination seen by the ICLC’s employment law practice. It often results in the employee’s dismissal or some other type of discriminatory conduct, for example, placing employees on extended paid or unpaid leave, performance management, and requesting detailed sensitive and personal information from an employee’s medical practitioners regarding health status and conditions.

While we accept that employers have ongoing duties to ensure a safe working environment for all workers, and accordingly, there may be legitimate concerns where an employee, for example, has been unwell for a lengthy period of time or suffered a significant injury and seeks to return to work. In respect of these situations, we understand why an employer may require additional information regarding that employee’s fitness and whether any accommodation or adjustment is necessary to ensure a safe system of work for that employee and other workers.

However, in our experience, these requests are equally likely to apply in circumstances where employees have only been on short periods of leave; have remained consistently in contact with their employer; and have provided a medical certificate and/or other evidence from medical professionals as to their fitness for work. Many of our clients feel compelled to comply with their employer’s requests, even where they feel uncomfortable or the request is excessive in comparison to the concern, as they fear disciplinary action for failure to follow an employer’s lawful and reasonable direction.

In a lot of these circumstances, employees end up having to take a longer period of leave than they were expecting or have an entitlement to, causing financial detriment, and there is little objective or sound evidence behind an employer’s concerns regarding an employee’s ability to perform the inherent requirements of their role. In particular, we note these

⁷ Fair Work Act 2009 (Cth), s 65A(3)(ii). ⁸ Ibid, s 65A(6)(c)(i).

situations are more likely to arise where employees present with psychological injuries and mental health issues.

Accordingly, the ICLC supports the recommendations of the Disability Royal Commission to include two additional factors in determining whether a prospective or existing employee would be able to carry out the inherent requirements of particular work: the nature and extent of any adjustments made; and the extent of consultation with any person with disability concerned. However, any amendments to this exception must:

  • be aligned with any introduction of a positive obligation to make adjustments for a person with a disability; and
  • strengthen employee protections when faced with excessive or inappropriate requests for medical information from their employer, including but not limited to clarification that only the minimum and relevant medical information that is necessary to determine whether an employee can perform the inherent requirements of their role is required to be provided.

CASE STUDY 3

Alex’s Case Study on Page 8 also raises serious and practical issues with the current exception to disability discrimination under the DDA where there is a question of whether the employee can perform the inherent requirements of their role, particularly where there is a dispute about what those inherent requirements are. In Alex’s case, his contract had him employed as one role, but he had performed a completely different role since his first day of employment—a role with different inherent requirements. Yet his employer relied on the inherent requirements of the first role in order to dismiss him, causing him significant financial loss in a time of recovery.

CASE STUDY 4

The ICLC advised Hayley*, who one day, after a period of unreasonable workload, asked her manager if she could go home. When her manager asked her why, she told him that she needed a mental health day, became overwhelmed and started to cry. That day itself, she started to receive emails from HR about their concerns regarding her fitness to work. Even after she provided a medical certificate from her GP, her employer would not allow her to return to work and instead asked for a report that she could perform the inherent requirements of her job, which Hayley thought was excessive given the circumstances. On the basis she could not perform the inherent requirements of her role, Hayley’s time away from work continued to the point where she exhausted her paid personal leave entitlements and was forced to go on unpaid leave. She was even prevented from accessing her annual leave entitlements because of her alleged lack of fitness for work.

*name changed for privacy reasons

Recommendation 6: (a) That the current provisions around the inherent requirements of a role exception in the DDA be reviewed; (b) That the DDA be amended to include two additional factors in determining whether a prospective or existing employee would be able to carry out the inherent requirements of particular work:

  • i. the nature and extent of any adjustments made; and
  • ii. the extent of consultation with any person with disability concerned

(c) That any amendments made to the provisions around the inherent requirements of a role exception in the DDA:

  • i. be aligned with any introduction of a positive obligation to make adjustments for a person with a disability; and
  • ii. strengthen employee protections when faced with excessive or inappropriate requests for medical information from their employer, including but not limited to clarification that only the minimum and relevant medical information that is necessary to determine whether an employee can perform the inherent requirements of their role is required to be provided.

9. HARASSMENT, OFFENSIVE BEHAVIOUR AND VILIFICATION

Harassment

Presently, the DDA limits unlawful harassment on the basis of a person’s disability in employment, education and the provision of goods and services. The ICLC supports extending this to all areas of public life. We note an expansive regime around harassment on the basis of sex already exists under Part 2, Division 2 of the Sex Discrimination Act 1984 (Cth), and accordingly, it is entirely appropriate for a similarly expansive regime to exist in regards to harassment on the basis of disability.

Vilification

The ICLC supports the introduction of:

  • a prohibition on offensive behaviour, that is, behaviour that is reasonably likely to “humiliate”, “offend”, “insult” and/or “intimidate; and
  • a vilification provision that would target the incitement of hate or threatening violence on the basis of a person’s disability, in line with the Disability Royal Commission’s recommendations.

The provisions should be expansive in nature, and in particular, capture the mediums and societal context in which harassment, offensive behaviour and vilification are likely to occur in the modern age. Harassment, offensive behaviour and vilification are prolific in online spaces, particularly social media, and frequently, the propagation of these behaviours is done by those with significant financial and societal influence.

Accordingly, any provisions introduced into the DDA dealing with these behaviours should explicitly and expansively reflect the mediums in which these behaviours can take place, and should also take into account the individual engaging in the relevant behaviour and their relevance and influence in broader societal conversations about disability, foreign and domestic.

For example, we note the recent decision from the High Court of Australia to uphold the Minister of Home Affairs’ refusal of a temporary visa to Candace Owens Farmer, a popular American political commentator and activist, on the basis that Ms Farmer would stir up dissension or strife.⁹ The Minister’s refusal was based on comments made by Ms Farmer that amounted to “extremist and inflammatory comments towards Muslim, Black, Jewish and LGBTQIA+ communities which generate controversy and hatred” and his concern that Ms

⁹ Farmer v Minister for Home Affairs [2025] HCA 38.

Farmer’s expression of her views in Australia “could lead not merely to disagreement or debate but… to ‘hostility and violent or radical action’”.10

We also note public comments made by members of the US Government, including the President and Secretary of Health, in relation to Tylenol (acetaminophen) and most recently, circumcision, and the prevalence and development of autism. Despite medical experts refuting these claims, harmful rhetoric and misinformation such as these comments does have the capacity to engender discord, perpetuate stereotypes, and in fact, dehumanise and cause violence to people with disabilities. Any harassment, offensive behaviour and/or vilification provision introduced into the DDA must reflect the changing and frightening spread of misinformation, particularly through online spaces, and the very real impact this has on marginalised communities, particularly people with disabilities.

Thank you for taking the time to consider our submissions for this review of the DDA. We appreciate the Attorney-General’s Department’s time and expertise in considering our submissions, that support an Act that is simplified, modernised and fit to meet the diverse and changing needs of those in our community who are one of the groups most likely to experience discrimination, stigma and persecution on the basis of a disability.

We would be delighted to attend further consultations to discuss or clarify our position on any of our above recommendations.

10 Ibid, [64].