Vision Australia Submission: Disability Discrimination Act Review

Submission to: Commonwealth Attorney-General’s Department

Submitted via: Online

Date: 22 October 2025

Submission approved by: redacted General Manager Corporate Affairs and Advocacy

Introduction

Vision Australia is making a submission to the Disability Discrimination Act Review (the Review) to express our support for the relevant recommendations from the report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Disability Royal Commission, the DRC). We also take the opportunity to highlight aspects of the Disability Discrimination Act 1992 (the DDA) that are in urgent need of reform if the DDA is to remain relevant and effective into the future. Our submission is structured around the clusters of Consultation Questions in the Issues Paper that was produced to support the Review. We have provided responses to most of the Consultation Questions, but we have omitted some that fall outside the scope of our experience and expertise.

At the outset, we want to stress our longstanding belief that the DDA has been a landmark piece of legislation since it was introduced in 1993. It has played a pivotal role in promoting greater community awareness of the right of people with disability to live free from discrimination, and it has continued to demonstrate its effectiveness in addressing individual instances of disability discrimination and instigating system change.

Nevertheless, the DDA is now in urgent need of reform if its effectiveness is to continue. There have been many changes in society over the past 30 years, perhaps the most significant of which is the digital revolution that is now embedded in almost every aspect of life and society. There have also been a number of court decisions, highlighted in the Issues Paper, that have weakened some of the mechanisms in the DDA. Finally, some aspects of the DDA have become increasingly problematic, such as the reliance on voluntary conciliation and the need for individuals to take their complaints to Federal court jurisdictions if that voluntary conciliation is not successful. Moreover, the complaints process is prolonged, uncertain and hampered by the perpetuation of a power imbalance between respondents who have the means to access legal representation and individual complaints who usually do not.

Based on our discussions with clients and others who have used the DDA, as well as our own experiences, we have come to the strong view that unless the DDA’s inherent weaknesses and evolving challenges are addressed, it will increasingly be seen by both the disability sector and the community generally as a “toothless tiger” with little capacity to address the many barriers to full inclusion that people with disability still too often face.

The 15 Recommendations in the DRC’s Final Report that relate to the DDA are therefore timely, and their full implementation is critical to its long-term viability and relevance. They are not, however, sufficient to optimise the DDA for contemporary society and future trends. As we discuss, the DDA must be updated to clarify its application to digital spaces and technologies, the complaints process must be made more robust, and the Australian Human Rights Commission (the AHRC) must be adequately resourced so that it can meet its responsibilities and perform its functions.

Responses to Consultation Questions

Question 1: How should disability be defined in the Disability Discrimination Act?

Question 2: What factors should be considered in developing a new definition of disability?

The definition of disability in the DDA has, for the most part, worked extremely well over the past 30 years. It has allowed people with a wide variety of disabilities to lodge complaints and have those complaints dealt with under the legislation. The DDA’s definition of disability has also been reflected in other Commonwealth and State/Territory legislation, regulation and policy. It has been effective in allowing disability to be considered a protected attribute along with other protected attributes in anti-discrimination legislative frameworks, and it has allowed useful comparison between discrimination on the basis of disability and discrimination on the basis of other attributes.

We therefore support a cautious approach to changing the current definition of disability. Conversely, we do not support replacing it with a definition that is based on a thoroughgoing interpretation of the social model of disability, wherein disability and discrimination are viewed as synonymous rather than different concepts. We certainly do not want to inadvertently create a situation where a person can be found not to have a disability after adjustments have been made, and so lose the protections afforded by the DDA. Similarly, it is essential that the current alignment between disability and other protected attributes be maintained, and that the DDA as a whole continues to be embedded in a framework of anti-discrimination law. We do regard the social model as essential to an informed and nuanced understanding of the socially constructed nature of disability, but we believe that the application of its foundational concepts to anti-discrimination law risks diminishing the value of both.

There is no doubt, however, that aspects of the current definition are not consistent with contemporary understandings of disability. Words like “disfigurement” and “malformation”, reflect outdated, quasi-medieval concepts of disability, and there is also little in the DDA’s definition that reflects the current understanding of neurodivergence that has developed since the term was first used in 1998¹. The DDA’s definition is also not well-equipped to encompass psychosocial disability.

To assist with updating the DDA’s definition of disability we recommend a thoughtful reading of the UN Convention on the Rights of Persons with Disabilities, since it uses somewhat more contemporary language and concepts than the DDA but, at the same time, does not embrace the social model at the expense of legal precision.

1 Cf. Walker, Nick (2021): Neuroqueer Heresies: Notes on the Neurodiversity Paradigm, Autistic Empowerment, and Postnormal Possibilities, Autonomous Press.

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

Question 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?

We support strengthening the DDA by expressly allowing complaints on the basis of multiple protected attributes. It is not unusual for a person with disability to experience multiple forms of discrimination. For example, a First Nations woman who is blind may experience race, sex and disability discrimination in employment. In practice it is often impossible to disentangle the various effects in order to construct one or more comparators. In any case, discrimination is experienced as a totality rather than as a sum of discrete components, and attempting to identify which piece of anti-discrimination to use inevitably results in artificial and incomplete outcomes.

Question 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?

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

We strongly support the approach recommended by the DRC, i.e., replacing the comparator test with an “unfavourable treatment” test, and shifting the burden of proof from the complainant to the respondent by requiring the respondent to prove that alleged discrimination was not on the ground of disability. The arguments presented by the DRC and recapitulated in the Issues Paper are compelling, and the adoption of the DRC’s recommendations will have significant benefit for people with disability, especially when making complaints in areas such as employment and the provision of digital goods and services.

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?

Question 8: Should the reasonableness element in the definition of indirect discrimination be: (a) removed; (b)

retained and supplemented with a list of factors; (c) replaced by a legitimate and proportionate test; (d) other.

Question 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?

In our view, the amendment to the DDA that would make the definition of indirect discrimination easier to understand is the complete removal of the “reasonableness” element. In our experience interacting with clients who have used the DDA to pursue complaints of disability discrimination, the “reasonableness” element, with its inherent imprecision, often leads to protracted arguments that make it more difficult to achieve a satisfactory conciliated outcome.

If it is decided that the “reasonableness” test must be retained, then we would strongly support the development of a non-exhaustive list of factors that must be taken into account when assessing its merits. We would prefer this option rather than, say, the introduction of a “legitimate and proportionate” test since it is already used in other Commonwealth and State/Territory legislation.

It is worth bearing in mind, however, that any non-exhaustive list will need regular updates to reflect changes in the scope of disability discrimination. Of the various forms of discrimination, disability discrimination is most affected by changes in technology, and these cannot always be predicted. For example, what might be considered (un)reasonable in the domain of physical space might be considered differently in digital space. For example, we are aware of situations where app developers have claimed that it is unreasonable to comply with accessibility standards. If the non-exhaustive list failed to include examples of application in the digital domain then its effectiveness would be increasingly limited over time.

We strongly support the removal of the “inability to comply” requirement from the definition of indirect discrimination. Apart from its confusing expression, this requirement is especially problematic for people complaining about disability discrimination in the provision of digital goods or digital services. There is virtually no case law to clarify the requirement in a digital context, and so it is open to respondents to interpret the requirement in ways that are not beneficial to people with a disability. For example: screen-reading software used by people who are blind to browse the web and interact with apps typically includes a large number of features. Some of these features are designed for advanced users who have specific needs, and they are not easily applied by the average user. If a DDA complaint is made about a website that does not comply with accessibility standards and to that extent is not accessible to people using screen-reading software, it is nevertheless open to a respondent to claim, rightly or wrongly, that the website can be used if certain advanced but little-known features of the software are used. In other words, the respondent could argue that there is no inability to comply, even though very few users of screen-reading software would, in practice, be able to do so.

To eliminate confusion and prevent attempts to subvert the objects of the DDA by resorting to arguments based around technological minutiae we therefore support removing the “inability to comply” requirement altogether.

Question 10: Should the Disabilities Convention be included in the objects provision of the Disability Discrimination Act?

Question 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?

We support the inclusion of the Disabilities Convention in the objects provisions of the DDA as the DRC has recommended. The Convention is the internationally agreed instrument that most clearly and strongly asserts the rights of people with disability, and its inclusion in Australia’s closest counterpart is entirely fitting. Moreover, the average user of the DDA, whether they are a person with a disability lodging a complaint or a duty holder responding to one, is unlikely to be aware of how courts may or do interpret the DDA in light of Australia’s international obligations. We agree that including the Convention would have a symbolic and substantive impact for people with disability by clarifying how the DDA and the Convention are related.

Similarly, we support requiring the DDA to be interpreted beneficially in line with Australia’s human rights obligations. The ubiquitous nature of the barriers faced by people with a disability in participating in the areas of public life covered by the DDA warrant explicit requirements about how the Act should be interpreted. In any case, such requirements would encourage all parties to a DDA complaint to inform themselves about those obligations as expressed through the Convention.

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

Question 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?

Question 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.

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

We strongly support the DRC’s recommendations relating to the inclusion of a positive duty in the DDA. In particular, our view is that the positive duty must apply to all duty holders covered by the DDA, not just those involved in employment or conducting a business, as is the case with the positive duty requirement in the Sex Discrimination Act. Of all the DRC’s recommendations relating to the DDA, we believe that those referring to the inclusion of a positive duty are the most urgently needed. If the DDA continues without a positive duty requirement then its usefulness in achieving lasting systemic change will remain fatally diminished.

While we acknowledge that consideration should be given to a duty holder’s resources, we think that such consideration must be calibrated according to the area in which the duty holder operates. For example, almost all business operators, including sole traders, have a website. It is not more expensive to design a website that complies with accessibility standards such as the Web Content Accessibility Guidelines (WCAG). It can become much more expensive if the core elements of accessibility are not included at the outset and must be “retrofitted” after the website has been finalised. This is also the case with apps. It must therefore be made clear that a positive duty does include incorporating accessibility features into websites, apps and other ways of providing services in the digital space.

We also believe that guidance to duty holders must refer to the provision of documents in accessible formats. We frequently receive feedback from clients that they have been unable to obtain documents, forms and other printed information from government departments, tribunals, courts, organisations and businesses in accessible formats. It should not be necessary for a DDA complaint to be lodged on each occasion when there is a failure to provide accessible information.

As an employer Vision Australia has had some experience with the positive duty requirement in the Sex Discrimination Act. A key to the success of a positive duty is having access to comprehensive guidance material that includes how the positive duty may or should apply in a variety of real-world scenarios. It is also important that organisations are given sufficient time to become familiar with the concept and develop strategies for achieving compliance.

While we support the recommendation that the AHRC be able to investigate positive duties and enter into enforceable undertakings, we have misgivings about its capacity to do so at its current resourcing levels. We often hear from clients that they can wait up to 12 months for their DDA complaint to be processed, and the resolution process can be protracted. If a positive duty is to be effective, it will be essential for the AHRC to be sufficiently resourced to carry out its relevant responsibilities, and also that it be given clear directions and expectations about how those responsibilities should be carried out.

Question 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?

Question 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?

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

We regularly hear from clients about the unwillingness or failure of duty holders, especially employers and education providers, to make adjustments, even if the provision of those adjustments would not impose an unjustifiable hardship. Sometimes the issue seems to be a misapplication of the notion of reasonableness, but in other cases it seems to be little more than wilful perversity.

We support the DRC’s recommendations to create a stand-alone duty to provide adjustments and the removal of the word “reasonable” wherever it is used in the context of adjustments. Not only would implementing these recommendations address concerns raised by the Sklavos decision, it would also make the concept of adjustments easier to understand and increase the likelihood that duty holders would make adjustments without the need for people with a disability to initiate the process in situations where there is an inevitable power imbalance, for example when a new employee requires adjustments.

We have given careful consideration to the scope of the stand-alone duty. We certainly support the intent of the DRC’s recommendation to broaden the scope to apply to contexts and situations not currently covered by the DDA. On balance, however, we believe that broadening the scope in this way would create uncertainty even with careful attention to legislative drafting. It could lead to an avalanche of complaints that would be beyond the capacity of the AHRC to process, and there could well be a net negative impact on people with disability.

We therefore support creating the stand-alone duty to provide adjustments only in areas that are currently within the scope of the DDA. However, broadening the scope should certainly be a topic for future discussion once the stand-alone duty has become established.

Question 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

We support the DRC’s recommendation to include the two additional factors (consultation and alternative options) that must be taken into account when assessing claims of unjustifiable hardship. In our experience duty holders often misunderstand the nature of adjustments that can be made, and assume that those adjustments that incur the greatest expense are the only ones that could be made. Employers, for example, may have no understanding of how people who are blind can use computers and apps via screen-reading software, and so they assume erroneously that any task requiring the use of computers is by definition impossible for a person who is blind to accomplish.

Similarly, e-commerce businesses that use inaccessible websites may assume that providing an option to order by phone is an acceptable adjustment, rather than rectifying the inaccessible online ordering process. They often do not consult with people who are blind or have low vision, and so wrongly assume that everyone is able to use the phone even though it is staffed only during business hours, whereas the online ordering system is available 24/7.

The use of inaccessible captchas on many websites is another example of where lack of consultation and the failure to consider alternatives often results in claims of unjustifiable hardship based on the need to maintain cyber-security. There is, of course, no reason why accessibility and security should be viewed as incompatible, but if web and app developers fail to consult with people who are blind or have low vision, and if they fail to consider alternative options, then they will have substantially misinformed themselves about the situation and any claims of unjustifiable hardship will likewise be substantially misinformed.

If it is decided to develop a new definition of unjustifiable hardship, then it is essential that it include consultation and consideration of alternative options as two of the factors that must be taken into account, otherwise it is likely to become problematic over time, just as the current definition has.

Question 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?

Question 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?

Question 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?

Unemployment is one of the biggest and most intractable barriers facing people who are blind or have low vision. Only 24% of people who are blind or have low vision are in full-time employment, and overall, the unemployment rate in the blind and low vision community is over 50%2

While there are many factors that account for these alarming statistics, one of the most frustrating is the misunderstanding, confusion and complexity surrounding the concept of inherent requirements. We would go so far as to say that the inherent requirements exception in the DDA has become broken, and is hence in urgent need of reform.

We strongly support the DRC’s recommendation to amend the DDA to consider the nature and extent of any adjustment made, and to encourage consultation between current and prospective employers and employees.

We recognise the sensitivities and dilemmas around disclosure of personal, disability-related information, as it is a topic that is raised with us frequently by clients, especially in the contexts of employment and education. Prospective employees may be reluctant to disclose their disability prior to or during, a job interview because if they are denied the job they will find it very difficult to prove that it was because of their disability.

Another factor that influences disclosure is lack of knowledge of the inherent requirements. People who are blind or have low vision may not know what they will need by way of adjustments because prospective employers are not required to publicise the inherent requirements of a job. A person may believe that they will not need any adjustments and conclude that there is therefore no need to disclose their disability, only to find later, when they become more familiar with the inherent requirements of the job, that they do need adjustments. Or they may assume that the employer’s computer systems are compatible with their screen-reading or screen-magnification software but discover later that they are not.

We think that the cumulative effect of amendments to the DDA dealing with shifting the burden of proof and creating positive duty obligations would help to allay these concerns and encourage more open conversations about inherent requirements. We also believe that employers should have more encouragement to identify and publicise the inherent requirements of any job they advertise. This could be done as part of guidance material developed to support the positive duty obligation.

2 Vision Australia (2020): Response to Disability Royal Commission Employment Issues Paper, Kooyong.

It is also important that any references to consultation with a person with a disability also allow for consultation with a person’s representative. Vision Australia and other organisations have professional expertise in assessing workplaces and are often able to identify issues and solutions that may not be apparent to the person themselves.

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

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

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

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

Vision Australia is not providing comment on these questions since the topic is outside the scope of our experience and expertise.

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

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

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

Question 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?

Our experience with instances of harassment and vilification is somewhat limited which may be because people who are blind or have low vision do not appear to have been as affected as some other disability groups or are less inclined to report it. We are, however, observing an increase in harassment and offensive behaviour, particularly in employment and education contexts. The proliferation of online social media platforms has also led to an increase in harassment and offensive behaviour. For example, we have recently become aware of a trend on TikTok called “Blindchallenge” or “Blindkidchallenge” where people without disability are encouraged to imitate or mock people who are blind. The idea is to provide entertainment, win prizes, and increase audience views, and there is no thought given to how the videos produced may offend the blind community.3

As far as we know this trend has not yet spread to Australia from the UK and US, but given the global reach of platforms like Tiktok it is only a matter of time. There has already been a Tiktok trend in Australia where people were told to act like they had a physical disability.4

We therefore strongly support the DRC’s recommendation to amend the DDA to include a general prohibition of offensive behaviour, modelled on S.18C of the Race Discrimination Act. Given the extremely damaging impact that harassment and offensive behaviour can have on people with a disability, we think it is essential that an effective mechanism for expediting the resolution of DDA complaints in this area is implemented. A person who has experienced harassment or offensive behaviour should not have to wait 6-12 months for their complaint to be dealt with, and endure a continuation of the discriminatory behaviour during this time. It will be important to ensure that online spaces are included in the definition of “public place”, because an increasing amount of harassment and offensive behaviour against people with a disability takes place on social media platforms.

We support the intent of the DRC’s recommendation to amend the DDA to include a prohibition of more serious behaviour such as vilification. However, in view of the recent changes to the Criminal Code that are described in the Issues Paper we think that this Code offers a more effective framework for addressing and deterring serious vilification.

We find it difficult to penetrate the logic behind allowing artistic works to be exempt from the prohibition of harassment and offensive behaviour. Given that people with a disability have often been belittled, disparaged, humiliated and offended under the guise of artistic expression, we believe that this exemption should not be carried over into any amendment to the DDA. At the very least, it should be clarified that this exemption can only be relied on very specific situations, for example, when a character in a historical novel expresses offensive views or uses offensive language towards people with disability that are no longer acceptable, and which are not those of the author.

3 An example of a Blindchallenge video can be found here: https://www.tiktok.com/@bladtfitzgerald/video/7562205442215070989

4 An example, produced by an Australian influencer with 2 million followers, canbe found here: https://www.youtube.com/watch?v=FGk6bJ6beEU

We also suggest that consideration be given to requiring anyone who believes they should be able to rely on this exemption to apply for it to the AHRC by providing samples and explanations.

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

Question 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?

Vision Australia is not providing comment on these questions as we have limited experience and expertise in this topic area.

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

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

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

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

We acknowledge, along with the DRC, that rights are not absolute, and that there are various and sometimes competing priorities that must be balanced in determining how rights are to be promoted and upheld. However, we do strongly support the DRC’s recommendation to amend the DDA so as to precisely define and clarify the permanent exemptions, and to provide a statement of how the rights of people with disability are limited by each exemption.

We believe that it is time to remove the migration exemption. It is based on an outdated “deficit model” of disability, it completely ignores the significant contributions that people with disability can and do make to the community, it is not consistent with community expectations, and it is likely not consistent with our obligations under the Disabilities Convention. In our view a better approach would be to require that each

immigration application from a person with disability be decided on a case by case basis, and that the general defence of unjustifiable hardship be the only defence available for engaging in discrimination.

We understand the reasons for the exemption relating to assistance animals, but in our view it needs clarification as it is difficult to interpret and apply in practice. The main issue is the lack of definition for evidence that may be requested. In our experience duty holders and service providers are not equipped to know which evidence they need or should request, or to assess the relevance and reliability of that evidence. In any case, there is often a misconception that requiring evidence is the rule rather than the exemption when interacting with assistance animals and their handlers. Conversely, handlers have no certainty about the evidence that they may be required to produce, and this causes extra stress when they visit public places with their assistance animal.

Our view is, therefore, that “evidence” must be defined exhaustively, either in the DDA itself or (preferably) in the Disability Discrimination Regulations. The definition should be developed to align with the National Assistance Animal Principles, but will most likely include a card, certificate or tag issued by the organisation that trained or accredited the assistance animal.

We support the DRC’s recommendation relating to the special measures exemption. However, and as we have noted previously, if the functions of the AHRC are expanded to include the issuing of temporary exemption certificates then it will be essential to also expand the AHRC’s resources.

We also support the inclusion of definitions for “special measures”, and “temporary exemptions” in the DDA in the interests of clarity and certainty. Our experience with the process for granting temporary exemptions is that it is effective and includes broad consultation by the AHRC. One way of emphasising the temporary nature of the exemption to assist in moving towards greater compliance with the objects of the DDA would be to include requirements about public reporting during the period for which the temporary exemption is granted.

Question 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?

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

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

People who use assistance animals to mitigate the impact of their disability still face frequent discrimination by accommodation and hospitality venues, some health and allied health facilities, and by point-to-point transport providers such as taxis and rideshares. It is usually very difficult to enforce penalties under State and Territory legislation, and people are deterred from lodging complaints under the DDA by the length of time it takes to process them (6-12 months), by the knowledge that individual duty holders are under no obligation to participate in conciliation, and by the lack of a mechanism for enforcing penalties other than the courts. We therefore believe that amendments to the DDA are necessary to provide greater clarity, consistency and certainty, and to ensure that all assistance animals are trained to consistent and appropriate standards.

We support an approach whereby the “second limb” in the DDA’s definition of an assistance animal is strengthened by prescribing training and accreditation organisations in the Disability Discrimination Regulations. This “prescribed organisations” approach has been followed in some jurisdictions such as the Northern Territory, and is in line with the National Assistance Animal Principles. In this respect, we believe that it is important for the community to be confident that trainers and organisations who provide assistance animals have consistent, appropriate and recognisable skills in this area. This is necessary to ensure that assistance animals accessing public spaces display proper behaviour. Inappropriate behaviour by animals that do not meet minimum training standards only serves to increase discrimination against handlers of well-trained assistance animals who are trying to access the community.

We have previously discussed the need for an exhaustive definition of the evidence that may be required in relation to assistance animals. In our view, the only valid forms of evidence that should be considered are those that can be provided by prescribed training or accreditation organisations.

In view of the uncertainty and confusion that has been created by the lack of national consistency in legislation and regulation dealing with assistance animals we support the development of guidance material that clarifies how the DDA applies in a variety of specific situations. For example, we regularly hear from clients who use a Seeing Eye Dog about the difficulties they face when attending health and allied health facilities such as blood collection centres, or when they need to use ambulance or hospital services. In these situations, there are incompatibilities between the DDA and State/Territory legislation, and neither the user nor the service provider has the knowledge to know how these incompatibilities should be resolved. Most likely the Seeing Eye Dog will be refused entry to the facility or the vehicle.

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

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

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

Vision Australia has assisted a variety of organisations to develop or review their disability action plans, and we have observed a spectrum of approaches. At one end are organisations who regard their action plan as an important mechanism for making progress on eliminating disability discrimination, promoting inclusion and equality, and demonstrating values-driven corporate citizenship. At the other end of the spectrum are organisations and institutions who treat their action plan as merely a risk minimisation strategy in the event of a DDA complaint, and who have no intention whatsoever to carry out any of the actions detailed in the plan.

In the middle are organisations who are basically well-intentioned, developing disability action plans that they launch with enthusiasm and fanfare, but then allow the plans to languish, eventually convincing themselves that the mere existence of a disability action plan is enough.

Given that there is such a broad spectrum of approaches, as well as the relatively small number of disability action plans that have been registered with the AHRC (65), it is reasonable to conclude that overall disability action plans have been less effective in promoting the objects of the DDA as was originally envisaged. We therefore support changes to the way disability action plans are defined and the process by which they are monitored.

We support giving the AHRC an expanded role, including the authority to reject disability action plans. As such, we think that the AHRC is best placed to determine what the minimum requirements of these plans should be, perhaps by using a similar approach to that taken in Tasmania’s Disability Rights, Inclusion and Safeguarding Act 2024. At the very least, however, there must be a requirement to demonstrate how the actions in the plan will promote the objects of the DDA and how they have been developed through consultation with the disability community. There must also be a requirement for regular and public reporting on progress in implementing the plan. The AHRC should be required to provide a list of organisations who have not met these reporting requirements as part of the AHRC’s parliamentary reporting.

We also believe that the relevance of a disability action plan in assessing claims of unjustifiable hardship should be clarified and strengthened to create a clear expectation that demonstrable progress in implementing the plan will be the primary consideration.

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

Question 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?

Question 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?

Despite some disappointing systemic failures to achieve compliance targets, our view is that the Disability Standards have been an important mechanism for making progress in the elimination of barriers to the full and equal participation of people with disability in society. The effectiveness of the standards has nevertheless been constrained by the reliance on the DDA’s individual complaints mechanism.

With the exception of the Education Standards, it is very difficult for a person with a disability to assess whether a particular barrier or situation they have encountered constitutes a breach of the standards. This is because the Australian Standards that are frequently and normatively referenced in both the transport and premises standards are not freely available. For people who are blind or have low vision the situation is even worse, because none of the referenced Australian Standards are available in accessible formats.

If the individual complaints mechanism is to be effective, there must be a requirement, expressed explicitly in the DDA if necessary, that all referenced standards, including Australian Standards, must be freely available, and must be available in accessible formats.

In 2020 Vision Australia conducted a survey of parents of school students who are blind or have low vision. We asked a number of questions relating to their awareness and use of the Education Standards. No respondent reported lodging a complaint alleging a breach of the standards. This was partly because many did not know about them, but mainly because of the protracted nature of the complaints process. In the 6-12 months it takes for the AHRC to process a complaint, the educational context for the student alleging a breach of the standards will have changed: the discriminatory behaviour or practices may have continued unabated causing stress and disadvantage for the student, or the student may have moved to a different class or even a different school where the original breach of the standards may now be

irrelevant. We have heard from students in the higher education sector who have been compelled to withdraw from their studies altogether because of the impact of practices that were clearly in breach of the standards.

As we have noted previously and will note again below, the DDA complaints mechanism requires a major overhaul if it is to regain its effectiveness. We think it is essential for complementary enforcement mechanisms to be developed for the three disability standards. We support extending the powers of the AHRC to conduct and enforce the outcomes of inquiries, and to enforce compliance with the standards through the positive duty obligation.

While we are not opposed to increasing requirements for reporting compliance with the standards, we have concerns that the focus may shift from working towards compliance to reporting about it, especially if there are no consequences for non-compliance. Similarly, we are yet to be persuaded that legislative encouragement to report compliance through action plans would have a tangible benefit, unless the expectations and requirements around action plans themselves were strengthened.

Question 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?

Question 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?

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

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

We believe that more guidance material is always more valuable than less. It will be particularly important to have an abundance of guidance material if amendments are made to the DDA to establish a positive duty obligation, to shift the burden of proof, and to remove the “reasonable” test.

Guidance material is most effective when it aims to clarify legislative or regulatory provisions; it is less effective when it is developed in areas where there is no legislative or regulatory certainty. In our view this is the case with guidance material produced to show how the DDA does, or might, apply in the digital space.

It is unfortunate that the DRC was not able to turn its attention to the many and increasing discriminatory barriers that people with disability face when interacting with digital spaces and technologies. The digital revolution, fuelled by the convergence of publishing, broadcasting, telecommunications and computing in the mid-1990s, has brought about profound transformations in every aspect of life. It is impossible now to live in developed countries like Australia without being impacted by digital technologies, and in our experience new forms of disability discrimination are rampant as a result.

The DDA was, of course, developed when the digital revolution was just beginning, and its generic provisions often do not apply automatically or unequivocally in a digital world. As one example, when a person who is blind purchases a washing machine that has a companion app and finds that the companion app is not accessible because it is not compatible with screen-reading software, is the app considered under the DDA to be part of the washing machine itself (we know that some manufacturers appear to think it is), a service provided by the manufacturer, or a means of providing one or more services by the manufacturer in relation to the washing machine? The answer to that question will determine whether the person can lodge a complaint under the DDA alleging disability discrimination in the provision of goods and services.

As far as we know this and similar questions have not been considered by courts, and although there have been quite a number of complaints about inaccessible websites, apps and other digital platforms, none of them has ever proceeded to trial, even though not all of them have been conciliated to the satisfaction of the complainants. The lack of legislative certainty in this area is acting as a significant deterrent for people who are blind or have low vision, and it is allowing disability discrimination in the digital world to proliferate largely unchecked.

We therefore believe that it is absolutely crucial that there are amendments to the DDA that clarify or establish its application in the digital world. If a positive duty obligation is legislated, then it will be equally crucial for that obligation to apply to the provision of digital goods and services such as employee recruitment platforms, educational learning systems, e-commerce websites, and companion apps for home appliances.

Some Commonwealth legislation, such as S30 of the Digital ID Act 2024, already mandates compliance with digital accessibility standards5. In the absence of Disability Standards developed under the DDA and covering digital technologies, there is an opportunity for amendments to the DDA to reference the same standards that are referenced in the Digital ID system as being applicable as part of a positive duty obligation.

Reform of the Complaints Mechanism

In conclusion we return to the vexed subject of the DDA’s complaints mechanism that we have mentioned throughout this submission. In our view the DDA fitness for purpose both now and into the future depends on a fundamental overhaul of this mechanism. There are three aspects that are most in need of expedited reform.

The first is the inordinate length of time it takes for a complaint to be processed by the AHRC once it is lodged. Our recent experience is that it takes 6-12 months, excluding any resolution processes. Most instances of disability discrimination are experienced as quite traumatic and distressing, and for a person with a disability to be forced to endure this trauma for up to a year, or to relive it again after a year of trying to put it behind them, is simply intolerable. One client told us that their DDA complaint was ongoing for 19 months, before it was terminated without a conciliated settlement.

It is not surprising that many people find it less stressful to stay away from the complaints process altogether. This is a most regrettable outcome given that the success of the DDA depends mainly on the success of its complaints mechanism in promoting the objects of the Act. Regardless of the factors that contribute to these lengthy processing times, the DDA must be amended to address them.

The second aspect of the DDA complaints mechanism that we believe must be reformed is the insistence on voluntary conciliation. It has been our long-standing view that the AHRC’s refusal to use the powers given to it under S.46PJ(3) of the Australian Human Rights Commission Act 1986 to require attendance at a conciliation conference does a disservice to the disability community and those who lodge or consider lodging a DDA complaint. We do not know of any instance where these powers have been used, even when requested.6

At the same time, we are not aware of any evidence that insisting on voluntary conciliation leads to better outcomes for the complaint. In fact, our experience with those State/Territory jurisdictions where participation is required, such as the NSW Anti-Discrimination Act, strongly suggests that complainants have more certainty when lodging complaints and that respondents are less likely to delay their response.

We therefore believe that the DDA must be amended to direct the AHRC to use its powers under S.46PJ(3), at least in situations where respondents demonstrate an unwillingness to participate in conciliation of a DDA complaint.

The third aspect of the DDA complaints mechanism that must be reformed is the lack of an effective process for ensuring that there is a power equality between complainants and respondents during investigation and attempted conciliation by the AHRC. Over time there appears to have been a gradual shift to a more formally legal approach to conciliation. Clients have often told us that they feel intimidated and disadvantaged when respondents are permitted to send teams of lawyers to a conciliation conference, or when respondents are given weeks or months to respond to proposals but they, the complainant, are only given a few days; or when they are expected to sign a conciliation agreement that has been drawn up by the respondent’s lawyers and which contains highly legal language that is beyond the capacity of most complainants to understand without expensive legal advice that they cannot afford. These factors usually occur in combination, and their effect is to make the conciliation

much more stressful and protracted than it should be, and to deter people from using the DDA again in the future.

We believe that serious consideration must be given to amending the DDA to include more guidance about how the conciliation process should be conducted so as to prevent a power imbalance between the parties, and minimise stress for individual complainants with a disability.

About Vision Australia

Vision Australia is the largest national provider of services to people who are blind, deafblind, or have low vision in Australia. We are formed through the merger of several of Australia’s most respected and experienced blindness and low vision agencies, celebrating our 150th year of operation in 2017.

Our vision is that people who are blind, deafblind, or have low vision will increasingly be able to choose to participate fully in every facet of community life. To help realise this goal, we provide high-quality services to the community of people who are blind, have low vision, are deafblind or have a print disability, and their families.

Vision Australia service delivery areas include: registered provider of specialist supports for the NDIS and My Aged Care Aids and Equipment, Assistive/Adaptive Technology training and support, Seeing Eye Dogs, National Library Services, Early childhood and education services, and Feelix Library for 0-7 year olds, employment services, production of alternate formats, Vision Australia Radio network, and national partnership with Radio for the Print Handicapped, Spectacles Program for the NSW Government, Advocacy and Engagement. We also work collaboratively with Government, businesses and the community to eliminate the barriers our clients face in making life choices and fully exercising rights as Australian citizens.

Vision Australia has unrivalled knowledge and experience through constant interaction with clients and their families, of whom we provide services to more than 30,000 people each year, and also through the direct involvement of people who are blind or have low vision at all levels of our organisation. Vision Australia is well placed to advise governments, business and the community on challenges faced by people who are blind or have low vision fully participating in community life.

We have a vibrant Client Reference Group, with people who are blind or have low vision representing the voice and needs of clients of our organisation to the board and management.

Vision Australia is also a significant employer of people who are blind or have low vision, with 15% of total staff having vision impairment.

Vision Australia Submission: Disability Discrimination Act Review