Submission to the Disability Discrimination Act Review 2025

Prepared by Aurora Elmes, redacted

Acknowledgement of Country

We acknowledge that the land on which we live, learn and work is that of the Wurundjeri Woi Wurrung People of the Kulin Nation, and celebrate their connection to land, sea, air and community. We pay our respects to the Traditional Owners of lands across Australia, their Elders, Ancestors, cultures, and heritage, and recognise the continuing sovereignties of all Aboriginal and Torres Strait Islander Nations.

Address for Correspondence

Aurora Elmes
redacted

About us

We work within higher education, in research focused on employment for people with disability, and implementing equity and accessibility into workplace practices. Collectively, we also hold a range of lived experience of disability.

Contents

• Introduction
• Response to review questions
  • Part 1 – Updating understandings of disability and disability discrimination
  • Part 2 – Positive duty to eliminate discrimination
  • Part 3 – Encouraging inclusion of people with disability in employment, education and other areas of public life
• References

Introduction

Thank you for the opportunity to provide a submission to the Disability Discrimination Act (DDA) Review. We welcome the chance to contribute to this important piece of legislation that aims to uphold the rights of people with disability. This submission draws on our knowledge of available evidence, as well as lived experience of disability.

Response to review questions

Part 1 – Updating understandings of disability and disability discrimination

Definitions of Disability

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

We recommend updating the definition to better align with the social and human rights model of disability, as reflected in the UN Convention on the Rights of Persons with Disabilities (UNCRPD) and supported by many disability rights organisations.

For example, a more inclusive and contemporary approach partially drawn from Inclusive Victoria: State Disability Plan 2022–2026 and UNCRPD, preamble section E (2006) could define disability as:

“People who have physical, cognitive, intellectual or sensory differences that, when interacting with inaccessible communities and environments, hinders their full and effective participation in society on an equal basis with others”.

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

As outlined above, the new definition should align with the human rights and social model of disability*, avoid deficit based and medicalised language, and reflect what is currently considered appropriate language by disability rights organisations and people with disability.

*Noting that there are competing opinions about the human rights and social model of disability, with some arguing for a complementary model and others arguing that the human rights model supersedes the social model of disability (see Lawson and Beckett, 2020).

In developing a new definition of disability, it is vital to use the human rights model as a solid foundation within the legal context of the DDA, while ensuring it is not treated as the sole framework. Factors that should be considered include:

• How disability is experienced in everyday life, recognising lived experience
• Structural and social barriers that limit participation and access
• Broader human rights principles beyond the legal context
• Language and terminology endorsed by disability representative organisations and people with disability
• Inclusivity across different types of impairments and conditions
• Adaptability to evolving social, legal, and policy understandings of disability
• Ensuring the definition is people-centric, practical, and supports equitable outcomes.

Amending the definition of direct discrimination

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?

As recommended by the Disability Royal Commission, “the focus should be on the unfavourable treatment or detriment that the person with disability has faced”, and this should not require a comparator. (see Issues paper, p. 29). The detriment test represents a shift towards more disability-affirming systems because it removes the technical and often artificial requirements of the comparator test. It focuses on whether a person has been treated unfavourably due to their disability, removing some barriers for people with disability to articulate their experience. This is particularly important because individual experiences of discrimination are often subtle and overlap with other forms of disadvantage, making it difficult to find an appropriate comparator. The detriment test allows people with disability to focus on describing the impact they have experienced rather than fitting their situation into a rigid comparison.

However, the detriment test is only reasonable if the burden of proof is on the respondent/duty holders to prove it was not due to disability, similar to the Fair Work Act. In applying a similar approach under the Disability Discrimination Act, care should be taken to ensure that the test is focused on lived experience and meaningful accountability, rather than compliance or monetary remedies alone.

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

As discussed in the Issues Paper, if a person with disability raises a discrimination complaint, the burden of proof should rest with the respondent to prove that they did not discriminate. The proposed changes recommended by the Disability Royal Commission (see Issues paper, p. 30) should be applied. This would better protect people with disability from discrimination, as the respondent would be required to gather and provide evidence that their processes and treatment of the person with disability are not discriminatory. It would also reduce the burden on people with disability in proving the case for their complaint, particularly when they may have unequal access to information as noted in the Issues paper (Australian Government 2025, p.31).

The burden of proof in the Disability Discrimination Act should be structured to minimise barriers faced by people with disability when seeking support or accountability after experiencing discrimination. The proposed shift to a detriment test, combined with a redistribution of the burden of proof, represents an important improvement. The key to this change is to ensure that there is a focus on the applicant communicating their lived experience rather than requiring formal proof, as a way to properly address and balance the barriers people with disability experience.

The Fair Work Act (2009) demonstrates how burden-shifting can operate in practice. Responsibility moves to respondents once the applicant has outlined their experience of impact. While this model is effective, in practice Fair Work processes often emphasise compliance and monetary remedies over the lived experience of employees or systemic accountability. In implementing a similar framework for the Disability Discrimination Act, respondents should be required to demonstrate, with supporting evidence or explanation, that their actions were not because of disability. This should be done in a way that is procedurally clear, trauma-informed, and accessible, ensuring the process focuses on meaningful accountability rather than technical compliance.

Adopting this approach could enhance access to justice while keeping the focus on the experience of discrimination and the support needs of people with disability.

Interpreting the Disability Discrimination Act in line with the Convention on the Rights of Persons with Disabilities

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

Yes, we support this change in line with the recommendations by the Disability Royal Commission, as set out in the Issues Paper (pp.38-39).

Including the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in the objects of the Act would signal a strong commitment to human rights and guide interpretation in line with international standards. However, while the CRPD provides a valuable normative framework, it is primarily compliance- and reporting-driven. Its inclusion should not create a system that prioritises formal compliance over meaningful accountability or practical support for people with disability.

Incorporating the CRPD should be framed in a way that grounds rights in lived experience, emphasises accessibility, and ensures that the objects of the Act reflect both principles and practical protections, rather than abstract international commitments.

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?

Yes, we support this change in line with the recommendations by the Disability Royal Commission, as set out in the Issues Paper (pp.38-39).

Part 2 – Positive duty to eliminate discrimination

Positive duty for duty holders to eliminate discrimination

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

The positive duty should apply broadly to employers and ‘persons conducting a business or undertaking’, as well as educational institutions, public and community services and events or groups. People with disability should be able to confidently participate in all aspects of life (education, employment, sporting and community events and more) without fear of discriminatory treatment, as supported by the UNCRPD (2006).

Part 3 – Encouraging inclusion of people with disability in employment, education and other areas of public life

Strengthening the duty to provide adjustments

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?

Yes, a stand-alone duty to provide adjustments could increase clarity regarding rights and obligations, and better align with the UNCRPD (2006, Article 27):

“States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.”

Introducing a stand-alone duty could help clarify the duty holders’ obligations and rebalance expectations between people with disability and duty holders. However, a stand-alone duty alone will not resolve the broader structural issues that limit accessibility in practice. Implementation would need to be supported by clear and consistent guidance for duty holders, sector-specific education and training, and accessible mechanisms for advice and early resolution. Consideration should also be given to how the duty interacts with disclosure obligations, medical documentation, and occupational health and safety processes. Individuals should not be placed under pressure to reveal personal information or provide medical certificates to trigger compliance, and disability support should not be treated

primarily as an OHS matter, as this can delay or limit access and reinforce a reactive, compliance-focused approach. Without monitoring and cultural change, the duty risks becoming a reactive compliance tool rather than a driver of inclusion.

Multiple factors need to be considered and addressed for this duty to be effective, including:

• Shift the burden of proof to the duty holder (as recommended in the Issues Paper, pp. 29–32): Ensures the focus is on organisational responsibility rather than individual proof.
• Clear guidance and practical tools: Duty holders need accessible, sector-specific support on embedding equitable and inclusive practices.
• Training and capacity building: Staff at all levels require skills, time, and resources to act on their duty meaningfully.
• Integration with structural frameworks: Existing barriers in organisational governance, decision-making processes, and reporting frameworks must be addressed to ensure the duty is implementable.
• Reducing barriers to adjustments: While medical information may be necessary in specific cases, people with disability should not be required, as a default, to provide personal information or medical certificates to access adjustments and equitable treatment. Making it standard practice creates unnecessary barriers, additional costs, and reinforces a medicalised rather than rights-based view.
• Supporting disclosure choices: People with disability should be supported in deciding if, when, and how to disclose personal or medical information, with clear guidance and reassurance that disclosure is not mandatory unless genuinely required.
• Decouple disability support from Occupational Health and Safety (OHS): While not part of the legal duty itself, separating disability support from OHS frameworks helps employers focus on inclusion and equity rather than solely on compliance and risk management.
• Monitoring and accountability: Oversight and reporting mechanisms should measure both quantitative outputs and qualitative indicators, capturing cultural change, practical accessibility improvements, and genuine inclusion, to ensure the duty does not become a symbolic compliance exercise.

• Culture change and inclusion: Implementation should prioritise authentic equity, inclusion, and accessibility, not just simple measurable outputs.

In principle, a stand-alone duty is a valuable first step. Still, its effectiveness depends on embedding it within a broader ecosystem of guidance, accountability, and cultural change, alongside legal and procedural reforms such as reversing the burden of proof.

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?

As recommended by the Disability Royal Commission, this should apply to all settings.

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 agree with the recommendation to remove the word “reasonable”, and instead simply refer to “adjustments”. The current inclusion of the word “reasonable” can unintentionally give duty holders disproportionate influence in determining what constitutes an appropriate adjustment for a person with disability. This can overlook the expertise and lived experience of the individual themselves. People with disability are best placed to identify the adjustments they need to perform the inherent requirements of their role. Research shows that when employees are supported with the adjustments they request, employment outcomes improve (Olsen 2022). When employees have to go through drawn-out processes to access adjustments, this negatively impacts their wellbeing and compromises their job tenure (Australian Disability Network; Olsen 2022).

It’s possible that removing the word “reasonable” may create some uncertainty as to the full range of adjustments that might be implemented. Detailed guidelines about adjustments that can be accessed would reduce ambiguity and provide certainty and guidance. Employer education is an important component of increasing employment opportunities for people with disability, and there is a need for training and support around this to address lack of employer knowledge (Campbell et al. 2024).

Definition of and considerations for unjustifiable hardship (Recommendation 4.32)

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

Please expand on your response.

We propose removing the term “unjustifiable hardship”, instead replacing it with “demonstrably unachievable”. Our explanation and reasoning are as follows. The Disability Discrimination Act should be amended to set out a clear, structured list of specific and weighted factors that must be considered when determining whether an adjustment made for a person with disability by a duty holder would be demonstrably unachievable. This would reduce subjectivity and improve consistency in decision-making.

The legislated factors should include, at a minimum:

• The nature and benefit of the adjustment for the person with disability
• The financial cost of the adjustment, relative to the resources of the duty holder
• The measurable degree of disruption or impact on others
• The availability of alternative adjustments that achieve similar outcomes
• The size and capacity of the duty holder or organisation
• The duty holder’s history of compliance and prior efforts to implement adjustments

While some of these factors are currently referenced in the Act, they should be demonstrative and provide greater clarity, to give stronger legislative guidance and ensure fairer, more transparent application.

Expanding the factors considered by employers when determining if an employee can carry out the inherent requirements of particular work (Recommendation 7.26)

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?

The Act should be amended in line with the Disability Royal Commission recommendations to consider the documentation of the nature and extent of any adjustments made, as well as the extent of conversation with any person with disability concerned. This would help ensure that people with disability have the opportunity to do a job and have their performance assessed with the relevant supports or adjustments in place. Including documented consultation requirements would help ensure that employers communicate with job candidates/employees about the supports or adjustments that might be required. Employers should review these supports / adjustments at least every 12 months and make changes in line with consultation. Research shows that when the adjustment process is consultative and employee adjustment requirements are delivered as requested, this results in better outcomes for employees (Olsen 2022).

Question 21 and 22:

• 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? And
• 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?

To promote inclusive employment practices, we recommend the introduction of targeted support measures to assist employers in meeting their duty to eliminate discrimination and advance equality for people with disability. This includes practical guidance and tools to:

• Understand and review the inherent requirements of a role, ensuring that these are accurately and fairly defined

• Recognise and consider the diverse range of reasonable accommodations that may enable a person with disability to perform the core duties of a role
• Build confidence and capability among employers to make inclusive hiring and management decisions.

In addition, we recommend introducing a legal requirement that in position descriptions all employers must:

• Clearly identify and document the core requirements of the position
• Provide a justification for why each listed requirement is inherent, demonstrating that it is essential to the role and not preference or convenience
• Include consideration of reasonable adjustments that could enable a person to meet those inherent requirements.

This requirement would promote greater transparency, accountability and consistency in the application of the inherent requirements exception and reduce the risk of unjustified or discriminatory exclusion of people with disability from employment opportunities.

To support these obligations, mandatory training for employers, resourced by government, could be introduced. This training should equip employers with the knowledge and skills to confidently support employees with disability, understand legal obligations and adopt inclusive workplace practices.

There are many existing resources to support employers in understanding engagement between prospective or current employers and prospective or current employees. This training aims to create awareness of the supports that can be offered, often without cost to organisations. For example, transport support (identifying routes to the workplace), and the use of picture cards in the workplace to assist with the completion of tasks.

• The Australian Job Access website has four videos that employers can view to prepare the workplace and also check they are eligible for the Employment Assistance Fund (EAF).
• The Reasonable Adjustments at Work good practice guide provides examples of different adjustments.
• The CSI WISE-Ability model outlines organisational design to support people with a disability at work.

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

Yes, as defined in the statement provided in the Issues paper, p.58 and shown below:

• “Section 22(2) of the Disability Discrimination Act makes it unlawful for an educational institution to discriminate against a student on the grounds of their disability by:
  • denying or limiting their access to a benefit
  • expelling them
  • subjecting them to any other detriment.
• The Disability Royal Commission recommended that this provision be amended to explicitly cover exclusion and suspension in addition to expulsion. In making this recommendation, the Disability Royal Commission said that the Disability Discrimination Act should ‘make it unlawful for an educational authority to discriminate against a student by suspending or excluding [them] on the grounds of a student’s disability’.”

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

Yes, there should be exception or limits on when exclusion is unlawful. For example, during a student placement/employment if there are instances in which someone’s health and safety would be placed at risk. There may also be instances in which lived experience or other categories are required in the role (ACFID, 2021, p.18).

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

There are currently recommendations for schools regarding provision of equal access to mainstream education and enrolment, as noted in Volume 7 of the Disability Royal Commission report (2023). These could also be considered for the Disability Discrimination Act:

Recommendation 7.1 Provide equal access to mainstream education and enrolment:

• “State and territory governments should take the following actions to prevent gatekeeping in mainstream schools:
  • maintain a central record of decisions on enrolment refusal or cancellation and provide an annual report to the responsible minister for education on trends and any additional actions required to address barriers

• establish an independent review process to enable a parent or supporter of a child or young person with disability to challenge a refusal to enrol the child or young person in a school.
• State and territory educational authorities should disseminate clear, accessible, transparent material for students with disability and their families on their rights, the obligations of schools relating to applications to attend a local school, and review processes.

Victorian Government response to recommendation 7.1

We accept this recommendation in principle.

We support students with disability to attend their local mainstream school. The Education and Training Reform Act (2006) provides for this.

We also support fair and equitable enrolment and appeals processes.

We will explore the suggestion for a central record of enrolment decisions.”

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

No, the higher education and vocational education and training sectors should be included in this approach to support change and address the marginalisation of people with a disability from these educational opportunities (de Bruin et al, 2024).

References

Australian Council for International Development (ACFID). (2021) Guidance for the Development of a Disability Inclusion Policy. Retrieved from: https://acfid.asn.au/resources/

Australian Disability Network. (2024). Getting workplace adjustments out of the “too hard basket.” Australian Disability Network. Retrieved from:

Workplace Adjustments _Research_Report_Accessible PDF Version.pdf

Australian Government. (2025). Disability Discrimination Act 1992 Review (Issues Paper). Retrieved from: Disability Discrimination Act 1992 Review

Australian Government (2025). Fair Work Act 2009. Federal Register of Legislation. Retrieved from: Fair Work Act 2009 - Federal Register of Legislation

Campbell, P., et al. (2024). Connecting Pathways to Employment with the Work Integration Social Enterprise (WISE) model: final report. Retrieved from:

https://doi.org/10.25916/sut.26378302

de Bruin, K., Poed, S. & Jackson, R. (2024) Performance of Australia’s Disability Standards for Education 2005: a policy analysis and evaluation, International Journal of Inclusive Education.

28:14, 3533-3553, DOI: 10.1080/13603116.2023.222126

Lawson, A., & Beckett, A. E. (2020). The social and human rights models of disability: towards a complementarity thesis. The International Journal of Human Rights, 25(2), 348-379. https://doi.org/10.1080/13642987.2020.1783533

Olsen, J. (2022). Employers: influencing disabled people’s employment through responses to reasonable adjustments. Disability & Society, 39(3), 791-810. https://doi.org/10.1080/09687599.2022.2099251

People with Disability Australia. (2025). Social model of disability. People with Disability

Australia website. Retrieved from: Social model of disability - People with Disability Australia

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2023). Final Report - Volume 7, Inclusive education, employment and housing. Retrieved from: Final Report - Volume 7, Inclusive education, employment and housing | Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

United Nations. (2006). United Nations Convention on the Rights of Persons with Disabilities.

Retrieved from https://www.ohchr.org/en/instruments-mechanisms/instruments/convention- rights-persons-disabilities

Victoria State Government. (2024). Victorian Government response to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability - Volume 7, Inclusive education, employment and housing. Retrieved from: Volume 7, Inclusive education, employment and housing | vic.gov.au

Victoria State Government. (2022). The social model of disability. Inclusive Victoria State

Disability Plan 2022-2026. The social model of disability | vic.gov.au