NDIA Accountability Project

Persistent discrimination from insurance companies due to disability assumption

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Thankyou for the opportunity to contribute to a review of the Disability Discrimination Act 1992 (‘the Act’).

Definition of disability

Consultation questions

  1. How should disability be defined in the Disability Discrimination Act?
  2. What factors should be considered in developing a new definition of disability?

I am supportive of the additions suggested in the Issues Paper, covering genetic predisposition and behaviours, symptoms and manifestations of disability. I advocate for words to the effect of ‘or degeneration in a person’s condition’ to be added to the ‘genetic predisposition’ line. I have experienced what I feel is persistent discrimination from insurance companies (particularly life / TPD insurance through superannuation companies) because of my disability, and their assumption that my condition may deteriorate. This denies me financial security following unexpected life events (including those that are unrelated to my disability), and can also impact how financial institutions view loan applications. While this Act may not be enough to prevent discrimination in insurance systems, it’s a start.

The language overwhelmingly remains medical and deficits-based. This is problematic because it can stop people identifying as disabled / having disability, which then impacts the formal and informal supports they can access. I experienced this myself: it took me years to accept that I was disabled and then identify as such. This isn’t uncommon for people who acquire their disability, for example through injury or a medical event, and have a period of ‘recovery’ before stabilisation. The ‘recovery’ mindset is focused on improvement and challenging yourself to function with decreasing levels of support. Accepting disability asks us to also accept that support is beneficial, not ‘giving up’ or something to be ashamed of, and that life will likely look very different to what we’d initially planned. This mindset shift is difficult, and not aided by language that focuses on loss and malfunction. To address this, I suggest that words to the effect of “health or medical condition, injury, or impairment that impacts a person’s physical, mental, or functional capacity” and “conditions, injuries or impairments that result in a person requiring adjustments, supports, aids, or assistive technology to navigate daily activities” be included in the definition.

The former is important because there are a range of conditions that aren’t clearly covered by the current definition that are disabling due to impacts such as pain or fatigue. These conditions - such as fibromyalgia, postural orthostatic tachycardia syndrome (POTS) or myalgic encephalomyelitis (ME/CFS) - disproportionately impact women, and there is increasing evidence that they (along with autoimmune and inflammatory conditions) are experienced at much higher rates in people who have experienced trauma, including the many impacted by family and sexual violence. These disabilities remain highly stigmatised because of their gendered nature, and because they are not well understood. They fluctuate, and sometimes people can undertake activities but they experience such significant symptoms as a result that they’re non-functional for days. This contributes to difficulty accessing support through national schemes like the Disability Support Pension (DSP) and National Disability Insurance Scheme (NDIS), which are anecdotally known for ‘not liking’ those conditions. A national definition of disability that clearly includes functional conditions is critical to addressing these systemic inequities.

The latter recognises the social model of disability more clearly: disability is not just about what is occurring in someone’s bodymind, it’s about the interaction of our bodyminds with our environment. This is often the point at which discrimination occurs: if people are denied

Intersectionality

Consultation questions

  1. Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes?
  2. 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?

The Act should expressly allow claims relating to multiple or intersecting protected attributes. As discussed in following sections, the current ‘comparator test’ is an unreasonable burden of evidence for people experiencing discrimination. This is particularly the case for cases of discrimination involving multiple protected attributes. A simpler test should be applied, to assess whether the person bringing the claim was impacted negatively on the basis of their protected attribute/s.

Direct discrimination

Consultation questions

  1. 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?
  2. How should the burden of proof be addressed in the Disability Discrimination Act?

Direct discrimination should be defined as unfavourable treatment or detriment, not less favourable treatment. For the purposes of defining unfavourable or detrimental treatment, the sharing of a person’s disability or related information by another person without their consent should be included. In my experience, this is usually done with the intent of humiliating, stigmatising, or harming the person with disability (including their reputation). Even without that intent, because disability discrimination is still so prevalent, sharing the fact of a person’s disability is reasonably likely to result in unfavourable treatment or harm.

The definition of direct discrimination must focus on the behaviour / policy / setting in question and the impact on the person affected, not the intent. It is easy for people to say they “didn’t mean it that way” or “that wasn’t my intention”, but their actions have still caused unfair impacts on someone on the basis of their disability. Ignorance is not a valid excuse for not complying with the law in other situations, and nor should it be here. I have had this experience in the workplace and when using services: informing another person of accessibility requirements, receiving a negative / victimising / discriminatory response, and then when I report the issue I’m told “we weren’t trying to be discriminatory, it’s just how we do things”.

Requiring someone to not only show the harm they experienced, but also prove causation, is unreasonable. Someone who has experienced discrimination is unlikely to have access to evidence showing why someone treated them in the way that they did. It is my experience that as we have seen social progress, discrimination still occurs but perpetrators are less open about the fact that they’re doing it, and why. When I experience discrimination at work now, I’m not usually told “it’s because your disability makes me value you less”, it’s subtle comments like “this is special treatment” or “are you sure you can do the job?”. Coupled with predictable denial from respondents about their actions and the reasons behind them, it’s near impossible for people experiencing disability to meet the burden of proof. I agree with the proposal that

the burden of proof for intent/causation should be on the respondent, as with FairWork processes, to show that the harm experienced by the applicant was not because of their disability / protected attributes.

The comparator test should not be a requirement for proving direct discrimination. It is unusual in law for someone to need to demonstrate that not only have they been harmed, but that they have been harmed where others have not been / would not be. I propose the definition of discrimination offers the opportunity for people to pursue remedy without comparing their experiences to others. It should focus on the impact of the behaviour, for example by adding “experienced behaviour that was threatening, stigmatising, offensive, prevented access, or contravened a positive duty to ensure equitable treatment, on the basis of disability”.

Indirect discrimination Consultation questions 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? 8. Should the reasonableness element in the definition of indirect discrimination be: a. removed b. retained and supplemented with a list of factors to consider c. replaced by a legitimate and proportionate test d. other 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?

The ‘reasonableness element’ should be removed from the indirect discrimination test in the Act. ‘Reasonable’ is a highly subjective concept, and no list of factors contained in the Act or supporting documentation could be exhaustive, which will create barriers for people seeking emedy. Even when these lists contain selected examples, they have a tendency to be treated as the only factors that will be considered or applied under relevant law. Further, the ‘reasonableness element’ frames disability and inclusion as individual issues, rather than social and environmental challenges to be addressed. An employer may, for example, see ensuring a person can participate in the workforce as ‘not their responsibility’ and as such see the cost as unreasonable for them / their business. In addition to updating the Act, there realistically needs to be funds available to remove structural discrimination, so that it is treated and resourced as a collective issue, and there would never be grounds for saying the cost of implementing change was unreasonable. The idea of ‘unjustifiable hardship’ also appears to only applied to the person or body required to make an adjustment: greater consideration should be given to whether not removing discriminatory practices, environments, or policy causes unjustifiable hardship to people with disability and other protected characteristics.

I also object to the ‘legitimate and proportionate’ test on the grounds of subjectivity, and the likelihood of privilege and power determining whose needs are considered more important or ‘legitimate’. For example, in my workplace, the one accessible entrance is often blocked by a security detail for a public official. The security detail have regularly refused disabled people access to the lift, to get to their place of work. This happens even when the public official isn’t immediately using it on the grounds of safety and protection. It is legitimate to keep this public official safe, and the security detail have decided that blocking lift access is proportionate to the risk they face. However, the fact remains that these actions prevent disabled staff from accessing their workplace and other building amenities, which breaches equal opportunity and discrimination legislation. I strongly suspect that concepts of ‘legitimate and proportionate’ would be used to excuse this kind of discriminatory conduct.

I agree with the proposed amendment that ‘does not or would not, or is not able or would not be able to comply’ be removed. There are things that a disabled person might be able to do in an emergency but will have significant repercussions – such as pain, fatigue, immobility, hospitalisation - and this could be argues as ‘able to comply’ even though it harms them. Disabled people currently face this challenge when they apply for the NDIS and DSP, with either fluctuating capacity to do certain activities, or ability to do activities but with severe health consequences, being used to dismiss disability.

There should be no exemptions to the indirect discrimination definition, and it should be clear that ignorance, a lack of intent, cost, or competing needs are not reasonable excuses. The fact that something, including a policy or practice that people are required to comply with, disadvantages someone with disability should be enough to prove indirect discrimination.

People should be able to bring indirect discrimination cases against medical, health and disability services, and social security and insurance schemes, if they impose eligibility requirements or processes that cause unjustifiable hardship or exclusion for disabled people. For example, Centrelink and the NDIS currently place such significant administrative (and associated financial) burdens on disabled people that many – particularly those with cognitive disability – are not able to meet. Not because they are not disabled, but because the evidence or process requirements are unreasonable. People are then unjustly excluded from support. Unreasonable requirements might include having to use very specific (yet not clearly specified) language, large volumes of paperwork that use different templates (so the same paperwork can’t be used for multiple purposes/services/schemes), expensive and difficult-to- obtain reports, inaccessible communication methods (e.g. unscheduled phone calls, not providing information in writing), and disclosing social security engagement to other parties who are known to discriminate on this basis (e.g. housing providers).

In a similar vein, means-testing for publicly funded services, such as Legal Aid and healthcare, that only consider income and not expenses (which are significantly higher for people with disability) should be considered indirect discrimination.

Positive duty Consultation questions

  • 12. If there was a positive duty in the Disability Discrimination Act, who should it apply to?
    1. 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?
    1. 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.
    1. Should there be exceptions or limits to the application of a positive duty?

Positive duty should be included in the Act, applying to everyone already covered by the Act. The largest benefit of positive duty is that it shifts the burden of responsibility for identifying discrimination and progressing equality from people who are most harmed by discrimination, to organisations with the resources to address it. Disabled people already often have enormous burdens placed on them to ensure their rights are met: in healthcare systems, disability systems, employment, education, housing, transport, and other areas of life. In many of these spaces, disabled people are trying to progress inclusion from a place of disempowerment: as

“clients”, people experiencing harm, people who are excluded, people with lower incomes and higher costs. When pursuing justice requires significant financial, emotional and energy resources, it’s simply unlikely to be seen. Placing the responsibility of preventing discrimination and ensuring equity on organisations shifts this burden, treating accessibility and disability as the societal / community issues they are.

Another benefit of positive duty is the removal of ignorance as a defence for discrimination. In response to reports of discrimination, the most common response I have received is “I didn’t mean it like that” or “I didn’t know it was discrimination”. As mentioned previously, ignorance of the law should not be available to excuse disability discrimination. It is one of the few remaining areas of law where this occurs, even within discrimination. I reasonably expect to not hear sexist or homophobic comments in my workplace, for example, and I’m fairly sure that if I did, my workplace would respond strongly. And yet when it comes to disability, there is no burden placed on colleagues to know how to be inclusive and not discriminatory. Introducing a positive duty, and requiring people and organisations to know how to not discriminate, will contribute to positive social change.

An issue borne out in Australian policy reform time and time again is poor implementation. In proving that they have met positive duty, organisations should be required to provide evidence of policies, systems, and training, but also implementation and impact on the knowledge, skills, attitudes and compliance of their members or staff. The Australian Human Rights Commission should be resourced to provide standard implementation and evaluation resources, and to monitor compliance for several years following legislative change. This ensures that complying with positive duty is not approached in a tokenistic way, upholds quality, and gives implementation the start required to translate policy change into social change. A failure of organisations to evidence positive duty implementation should be available to apply penalties, both for the act of non-compliance and in a case where an individual brings a discrimination case against them.

People and bodies should have the option to raise complaints about a lack of fulfilment of positive duty obligations, as well as individual instances of discrimination. This is a preventive measure, to address the drivers of discrimination before harm occurs. It aligns with human rights principles, ensuring that no one experiences avoidable harm or unjust treatment. Requiring harm to have already occurred and asking the harmed parties to invest significant resources before systemic issues can be addressed is subjecting disabled people to avoidable injury and expense.

I don’t believe there should be limits or exceptions to application of a positive duty. It is critical that employers, education providers, health and disability care providers, public institutions/bodies, essential services, service providers, housing providers, and any one in receipt of public funds be accountable to the Act in full. Often limits and exceptions are suggested because of the cost of compliance, but I object to this framing. We must first consider the benefits of a positive duty: wellbeing, community participation, sense of inclusion, economic participation, and the unintended positive outcomes that typically come from anti- discrimination initiatives. The costs of not requiring adherence to a positive duty are these benefits: and they will reliably outweigh the relatively small and short-term cost of teaching people and systems to not discriminate.

Adjustments

Consultation questions

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  1. 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?
  2. 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?
  3. Would removing the word ‘reasonable’ from the term ‘reasonable adjustments’ to align the language with the legal effect create any unintended consequences?

I agree with the recommendation to remove ‘reasonable’ from the term ‘adjustment’. There currently a dynamic where employers think they have the right to decide what’s ‘reasonable’ and what’s a ‘real’ disability. This is not appropriate: disabled people, sometimes in consultation with their support or treating teams, are the best judge of what they need.

Adjustments should be available without medical evidence and pressure to disclose a diagnosis. Personal and health information can be mishandled, resulting in stigma, discrimination, and a lack of safety in employment and education spaces. I have experienced this recently: medical information being shared without my consent with colleagues, and inappropriate and baseless conjecture about my capabilities because of my diagnosis. It is humiliating, and no amount of privacy legislation has prevented it. I have generally observed workplaces abusing the right to ask for evidence to support requests: they ask for too much, several forms, or personal details that are not relevant to whether the organisation has the resources to approve something. Therefore, I submit that most adjustments should be made available without evidence or personal/health information. The only time when medical evidence might be relevant is to confirm whether less resource-intensive alternatives could be appropriate. Even then, evidence could be limited to the opinion of an occupational therapist or other treater on the specific question, and should not include a diagnosis or other personal or health information. I question whether it is even reasonable in those circumstances, as I have never met a healthcare provider who knew more about my disability or capabilities than I did. Asking employees to obtain this kind of ‘evidence’ is often costly, time intensive, and a fairly shallow administrative exercise. Many disabled people are already asked to prove time and time again what they’re experiencing and what they need, on different letterheads or forms, from different specific specialities, and using different specific language tailored to that setting. It is a waste of time designed to prevent people asking for support.

Employers should be required to proactively ask about adjustments - without asking about details of the disability in question - and could offer some common examples of adjustments they can or do provide. Placing the onus for adjustment discussions on employees results in adjustments being seen as ‘special’ or ‘exceptional’, which further stigmatises disabled people as resource-intensive hires. It also often prevents people with invisible disability from requesting adjustments. Asking about adjustments is an easy adjustment to make to the Act, and fairly simple and low-cost to implement.

The question of who is responsible for adjustments is more complex now that working from home is more common. It is also difficult for people stuck between disability insurance schemes or waiting on appeals that can take years. In my experience, centralised schemes like the Employment Assistance Fund (EAF) are incredibly valuable. They enable people who predominately work from home to ask for adjustments more easily, as the ‘ask’ on employers is much lower: they sign some forms rather than fully fund adjustments themselves. It also enables employees to purchase equipment or technology that they can take with them between jobs, lowering future barriers to employment. As someone who has been put through several appeals processes with different disability insurance schemes, it is also useful to have a tailored employment scheme that does not require individual funding to be in place. The EAF

requirement to ‘not be eligible’ for other schemes is still problematic, because of the timeframe and difficulty getting supports approved through insurance schemes, and the high likelihood that people will need to utilise lengthy appeals processes – especially for invisible disability. How many rejections is enough to definitively say that you’re not eligible for another scheme?

The duty to provide adjustments should not only apply to workplaces. The requirement of disability insurers, healthcare providers, and other services to provide adjustments needs to be clarified. I have experienced persistent challenges in convincing services – including publicly funded services and disability-focused services – to ensure accessibility. For example, I have had to make formal complaints to three separate disability insurance schemes/bodies because they have insisted on unscheduled phone calls to deliver significant decisions or ask consequential questions, and refused to provide information, decisions or questions in writing. This is not accessible to me: I need time to consider information and resource support people if necessary, and I also process written information far better than verbal/auditory information. The most common response I have had is “it’s organisational policy to call people / call people first”, even though I have explicitly requested written information on the basis of disability. All organisations and schemes who provide disability or healthcare services / insurance should be required to implement adjustments that ensure access, and they must be instructed that organisational policy does not override legislation.

The revised Act should address the Sklavos 2017 decision, ensuring that someone’s disability does not need to be the reason that an adjustment has not been provided. It is nonsensical, and would be inconsistent with a duty holder’s obligations to make an adjustment unless it would impose an unjustifiable hardship. This must be explicit.

There should be clear penalties for non-compliance with adjustment requests that do not rely on individual people making common law or conciliation applications. This could include reporting through a statutory body, such as what already exists for workplace health and safety breaches, where the body may issue a ‘please explain’, commence an investigation, and issue compliance notices and penalties, without an individual complainant carrying the burden.

Unjustifiable hardship Consultation questions 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

I agree with option 2 of the alternative definitions provided: the new definition of unjustifiable hardship should be “where the benefit to the person and community would be outweighed by the detriment and cost to any person concerned”. This is because it puts the disabled person in the picture: otherwise the definition only considers the cost to the duty holder, not the person potentially losing access to something.

In meeting the definition of ‘unjustifiable hardship’, there should be requirement on the organisation in question to consult the person with disability, and explore alternative options available to remove hardship before claiming this protection. As disabled people are in the best position to inform what would remove / reduce / mitigate discrimination and harm, they must be consulted before a decision to deny or change a request is made. This encourages collaboration between the disabled person and employer, shifting some of the

Inherent requirements

Consultation questions:

  1. 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?

  2. 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?

  3. 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?

The Act should be modified to include guidance on what ‘inherent requirements’ are and can be: just because something tends to be done in a certain way, doesn’t mean it needs to be. Before something is declared an inherent requirement and someone unable to complete it, the employer should have a duty to consult with the employee on how they could complete it and provide evidence that this would be unsuitable. My experience of the disability community is that we are endlessly creative with getting things done, and often have systems and approaches that non-disabled people haven’t considered. Again, we are the experts and should be a part of decision making that centres on our capabilities.

Inherent requirements should need to be part of any position description and job advertisement, so that it is clear to all parties from the start of employment what is needed. This is protective both for employers and employees. For employers, because it is evidence that they have communicated requirements clearly to prospective employees. And for employees, by preventing situations where employers use it as an excuse to not provide adjustments, dismiss staff, or not comply with return-to-work requirements after injury. I have noticed that, where inherent requirements are detailed at all, they have a tendency to be brief and focused on physical tasks. This does not meet the needs of modern definitions of disability, including neurodivergence, mental health conditions, and other invisible disability. Inherent requirements should cover all elements in the definition of disability within the Act. For example, in my sector, inherent requirements might include ‘Engaging with traumatic content, including descriptions of interpersonal violence and abuse’, ‘Interacting with unknown people verbally and by email’, or ‘Working in open-office environments that include high levels of auditory, visual and tactile inputs’. This then enables the disabled person to assess whether they can or want to do the job, and provides a good basis for discussions about what is a definite requirement and what potential adjustments might be made to improve access.

It is also critical to distinguish between an outcome that is an inherent requirement and a process that is an inherent requirement. There are cases where certain ways of working are requirements for regulatory, legislative, or safety reasons. But in some cases, certain outcomes may be needed but the ‘how’ can be flexible. This should be thought through carefully to ensure inherent requirements are not needlessly discriminatory.

Offensive behaviour and vilification protections

Consultation questions

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

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

  2. Should there be exemptions for any behaviour, similar to the Racial Discrimination Act?

  3. 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?

I agree with the Disability Royal Commission recommendation that ‘offensive behaviour’ should be the primary definition, encompassing acts that are reasonably likely to offend, insult, humiliate or intimidate another person or group of people. I suggest adding ‘endanger’ and ‘distress’, noting that the inclusion of ‘reasonably likely in all circumstances’ in the statement modifies ‘distress’ enough to ensure there is a fairness test, and that the modification would not impinge free speech unnecessarily.

The Act should prohibit generally offensive statements, not just directed towards individuals and their specific disability. For example, the use of ableist slurs, eugenicist statements, and stigmatising/offensive statements should be unlawful. I don’t believe that it would be reasonable to prove that an alleged perpetrator knows or perceives another person to be disabled, in order to prove that their conduct is offensive. This would be leaving language with similar issues to the ‘comparator test’ in the Act, and remove a reasonable likelihood that someone could be held to account for discriminatory speech. I suggest language to the effect of “the act substantially relates to disability” or “the act is reasonably likely, on the basis of the specific event/s in question or attitudes or beliefs exhibited by the first person before, during or after the event/s, to relate to unfavourable attitudes or beliefs towards disability”.

Exemptions

Consultation questions

  1. Could any of the permanent exemptions be narrowed or updated, while balancing other policy considerations?

The exemption for superannuation and insurance companies should be removed on full. I’ve been refused insurance through my superannuation providers even for unrelated conditions. This is unjust, particularly when insurance is required for some financial services (like getting a mortgage), and the public social safety net is ineffective and inadequate. If the law isn’t amended then the government must provide a comprehensive alternative, including adequate and accessible DSP, short term payments for gaps in paid work that are enough to live on (a public scheme that more closely resembles income protection) and life and total and permanent disability insurance. This is a market gap due to discrimination, and the Australian Government has a duty to fill it either through preventing discrimination or providing the service.

The Migration Health Act requirement should be removed. This exemption undervalues the lives of disabled people and separates families. It also treats disabled people solely as a ‘cost’ to be contained, rather than a human being with inherent value, and a potential contributor to communities, families, and the workforce.

I also have significant concerns about the exemption for acts complying with an industrial instrument, order, award or determination of a court or tribunal to the extent to which it relates to capacity-based salary or wages for people with disability. Many disability employment

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schemes are inequitable and predominately benefit Disability Employment Services (DES), and employers who get below-minimum-wage labour. These employment settings are unjust. While they are sold as ‘providing opportunities’ for disabled people, they realistically segregate employment, entrench financial disadvantage, and create the conditions for exploitation. I have no doubt that some people who undertake below-minimum-wage employment enjoy work or work-like activities, but people shouldn’t be in a position where they think that being an ‘employee’ is the only way they are considered valuable by their communities in the first place. Disabled people should receive enough on the DSP to live a dignified life, and if they choose to work or volunteer or just do things that create meaning, it’s out of want, and not compulsion or shame. No one should be paid below our minimum wage, ever. The DES-industrial complex that consistently harms and stigmatises disabled people, and that has been built and sustained by shameful social security policy, should not be propped up by anti-discrimination law.

I note upon reading the social security exemption that greater harmonisation is needed between the definition of disability under various Federal, State and Territory schemes. Currently, disability is treated differently under the Disability Discrimination Act 1992, the DSP Social Security Guide, the Social Security Act 1991, and NDIS eligibility guidelines. Our social security system should be able to provide specific payments for disabled people, however the current eligibility guidelines exclude many people with disability, including permanent disability that prevents them from working. I believe our social security system also discriminates against disabled people by removing their access to financial support if they enter into consenting, legally sanctioned relationships (i.e. de facto or marriage). This functionally prevents many disabled people from having the same rights as non-disabled people to co-habiting or legal relationships, financial independence (important for preventing family violence) and access to medical and disability care (which has a high cost) at the same time.

Assistance animals

Consultation questions

    1. 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?
    1. Would legislative amendments or guidance materials be helpful to balance flexibility and certainty, or a mixture of both?
    1. Should specific training organisations be prescribed under the Disability Discrimination Regulations?

There needs to be more clarity around the training and accreditation of service animals. People experience ongoing discrimination on the basis of service/assistance animals, and I believe that greater national consistency would support better awareness around rights, obligations, and expectations, and possibly reduce the likelihood of discrimination. However, prescriptive and restricted training and certification guidelines will preclude many people from accessing the service/assistance animals they need due to cost, availability, and geography. There is also a risk that prescriptive guidelines will exclude training and animals of a type that support people with lesser-understood disability and conditions. For example, service dogs who support Blind and vision impaired people are reasonably well recognised in Australia, noting that discrimination is of course still reported. However, animals that assist people with dysautonomia to complete household tasks or identify hypotensive episodes, or animals that prevent emotional dysregulation, may be just as critical to a person accessing their communities safety but are far less well understood. There should be a single national accreditation scheme where people need to provide evidence that their service/assistance animal can complete tasks that assist them (whatever that means for

Other Potential Improvements

Disabled people within the criminal justice system – both diagnosed and not yet diagnosed – experience significant discrimination. In fact, their engagement with the criminal justice system may be the result of a lifetime of cumulative discrimination and exclusion, or the mislabelling of behaviour related to unsupported disability as ‘criminal’, including in children. As one example, there is currently inadequate screening of (likely) brain injury by Police, legal services, prisons, and other parts of the criminal justice system. However, there is a strong correlation between brain injury and people who use and experience violence – including family violence – and therefore people who are engaged with the system. There is also a strong correlation between brain injury or cognitive disability and people who are incarcerated. This outcome - disproportionately high rates of incarceration of people with brain injury – suggests an unjust system. Designing criminal justice services / systems to be more likely to criminalise people with brain injury is discriminatory. These bodies urgently need better training on psychosocial and cognitive disability, and to reform their practices and policies with disability in mind. Once incarcerated, people lose access to public health and disability care, including NDIS supports.

This loss of support places people at risk of harm, targeting by prison officers and other inmates, losing function, and unintentionally breaking regulations. The Disability Discrimination Act should apply to the criminal justice system including prisons, and offer protection to people who are incarcerated. Every part of the criminal justice system should be considered services under the Act to ensure discrimination can’t occur: they are, after all, public servants in government-funded agencies.