Criminalisation and intersectional discrimination experienced by incarcerated women and girls

Submission to the Disability Discrimination Act Review

About us:

The National Network of Incarcerated and Formerly Incarcerated Women & Girls (The National Network) is an organisation made up of ciswomen, transwomen, gender diverse people, and girls who are currently incarcerated or have been in cages across so-called Australia. We aim to end the incarceration, exile, surveillance and punishment of women and girls by organising against the intersecting gendered, racial and class violence that produce prisons and police. We are committed to Indigenous sovereignty which requires the abolition of the Prison-Industrial-Complex, and we believe that only women and girls who have been trapped in cages across so-called Australia should be determining the terms through which we endeavour to free all women and girls in cages. Our membership is drawn from all-over so-called Australia.

Response to Issues Paper:

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

The definition of disability in the Disability Discrimination Act (DDA) must be broad, inclusive, and reflective of lived realities, not just medical or diagnostic categories. For criminalised and incarcerated women and girls, disability is often undiagnosed, misdiagnosed, or pathologised through carceral and colonial systems. Many women and girls in prison live with the impacts of trauma, brain injury, mental distress, substance dependence, or cognitive impairment that are directly linked to experiences of violence, poverty, racism, and state intervention¹.

The DDA should recognise disability as both an individual experience and a social and structural condition, shaped by the barriers, discrimination, and state systems that disable people. The definition must move beyond a purely impairment-based or medicalised framing to one that acknowledges the role of social, cultural, and institutional factors in producing disability.

Importantly, the DDA must explicitly recognise psycho-social disability, neurodiversity, and acquired brain injury, and make clear that people in prisons, psychiatric settings, or compulsory care institutions are covered by the protections of the Act.

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

A modern definition of disability must:

• Align with the Convention on the Rights of Persons with Disabilities (CRPD), adopting a human rights and social model that focuses on removing barriers rather than ‘fixing’ people.
• Acknowledge intersectionality, including the ways disability intersects with race, gender, poverty, and criminalisation. For Aboriginal and Torres Strait Islander women

¹ https://www.thekids.org.au/globalassets/media/documents/aboriginal-health/working-together-second- edition/wt-part-2-chapt-10-final.pdf

and girls, the experience of disability cannot be separated from the ongoing impacts of colonisation, intergenerational trauma, and systemic racism.

• Recognise state-produced disability, where the carceral system itself causes or exacerbates disability through violence, neglect, and isolation.
• Ensure cultural safety and self-determination, particularly for Aboriginal and Torres Strait Islander people with disability.
• Avoid pathologising trauma while ensuring that trauma-related impairments and mental distress are protected under the Act.
• Guarantee coverage regardless of diagnosis, documentation, or treatment status, as many people in prison are denied access to diagnosis or disability support.

A reformed definition should reflect that disability is created by social and systemic exclusion, not inherent in the person, and that the law’s role is to remove those barriers and ensure full participation, safety, and dignity for all people with disability, including those in prisons and other closed institutions.

3. We have chosen not to respond to Question 3, as our comments on intersectionality and compounding discrimination are best addressed through Question 4

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?

Yes. The Disability Discrimination Act (DDA) must be amended to recognise and address intersectional and compounding forms of discrimination. The current framework treats discrimination as if it happens in isolation, as if someone is discriminated against because of their disability or because of their race or because of their gender, when discrimination is experienced all at once.

For criminalised and incarcerated women and girls, particularly Aboriginal and Torres Strait Islander women and girls, discrimination is cumulative and compounding. It arises from multiple, overlapping systems of control and exclusion: racism, sexism, ableism, classism, and criminalisation, that cannot be separated from each other. A woman may be refused housing not just because of her disability, but also because she is Aboriginal, has a criminal record, and is a mother. The law must be able to recognise and respond to this reality.

To achieve this, the DDA should:

• Expressly include intersectional discrimination as a prohibited ground, so that people can bring complaints based on more than one attribute where those attributes interact.

5-6. Definition of Direct Discrimination and Burden of Proof

While we do not have specific comments on the technical legal tests for direct discrimination or burden of proof, we note that any definition or evidentiary framework must be accessible and usable by people with disability, particularly those who are criminalised or incarcerated. Currently, people in prison or with criminal records face extreme barriers to lodging and pursuing discrimination complaints, from lack of legal representation and digital access to fear of retaliation and disbelief by authorities. A simplified test and an affirmative duty on duty holders to demonstrate compliance would help to rebalance the power dynamics that make complaints processes inaccessible to the most marginalised.

Reform should prioritise ease of understanding, low evidentiary thresholds, and proactive obligations on institutions, so that the responsibility for preventing discrimination does not fall solely on the person experiencing it.

7-9. Definition of Indirect Discrimination and Related Elements

For criminalised and incarcerated women and girls with disability, indirect discrimination is the form most often experienced, and least likely to be recognised or remedied. Many of the conditions, requirements, and practices imposed by carceral and state systems appear neutral but have disproportionate and devastating effects on disabled people, particularly Aboriginal and Torres Strait Islander women and girls.

Examples include:

• blanket policies that deny access to medication, aids, or supports in custody;
• uniform disciplinary rules that punish people for behaviours linked to disability, trauma, or mental distress;
• bail and parole conditions that cannot be met due to disability, housing insecurity, or poverty; and

On Question 6 - Psychological Harm

Administrative or security requirements (such as strip searches, isolation, or communication restrictions) that compound psychological harm.

To ensure the DDA is practical and accessible, the definition of indirect discrimination should be simplified and focused on outcomes rather than legal technicalities. Disabled people in prison, or those recently released, are rarely able to navigate complex legal tests. A plain- language definition centred on disadvantage and impact would make the law far more usable.

On Question 7 - Simplicity and Accessibility

The definition should be framed so that people with disability, not just lawyers, can recognise when they have been discriminated against. It should focus on whether a policy, rule, or practice has the effect of disadvantaging people with disability, without requiring them to prove every step of compliance or non-compliance.

Clear examples, community education, and accessible complaint supports are also needed, especially for those in institutions or recently released from them, who are otherwise excluded from the protection of the law.

On Question 8 - The “Reasonableness” Element

We support removing the reasonableness element (option a), as recommended by the Disability Royal Commission.

In practice, the reasonableness test places an unfair burden on the person with disability to disprove a decision-maker’s justification, a near-impossible task for someone inside prison or living in poverty, without access to lawyers or documentation.

Retaining “reasonableness” allows systemic discrimination to be defended as reasonable administration, security policy, or budget constraint. These defences routinely shield carceral systems from accountability. The unjustifiable hardship test already provides sufficient protection for duty holders.

Removing “reasonableness” would make it easier to expose and address discriminatory practices embedded in institutional settings like prisons, courts, and parole systems.

On Question 9 - “Does Not or Would Not Be Able to Comply”

Yes, this language should be removed.

It reflects a bureaucratic and deficit-based view of disability, implying that discrimination occurs only when a person fails to comply, rather than when a system creates barriers that make compliance impossible.

For women and girls in prison, the issue is rarely about individual inability; it is about structural exclusion. Policies and conditions are designed without consideration of disability.

10-11. The Convention on the Rights of Persons with Disabilities and Interpretation of the DDA

The National Network strongly supports explicitly embedding the Convention on the Rights of Persons with Disabilities (CRPD) within the objects and interpretation provisions of the Disability Discrimination Act (DDA).

Australia’s obligations under the CRPD must not be symbolic, they should be a living, enforceable commitment to protecting and upholding the human rights of people with disability, including those most harmed and hidden by the system. This includes criminalised and incarcerated women and girls, who experience some of the most severe and systemic breaches of the CRPD in the country.

In closed environments such as prisons, mental health facilities, and compulsory care settings, people with disability are routinely denied the right to autonomy, dignity, and freedom from torture and ill-treatment; rights explicitly protected under Articles 14, 15, and 17 of the CRPD. These settings remain largely outside public scrutiny and accountability.

Embedding the CRPD directly into the DDA would make these rights visible and actionable under Australian law.

Question 10 — Inclusion of the CRPD in the Objects Provision

Yes. The CRPD should be explicitly referenced in the DDA’s objects clause to ensure the Act is clearly understood as a mechanism for giving effect to Australia’s international human rights obligations.

This amendment would:

• strengthen interpretative guidance for courts and tribunals,
• signal to public authorities and service providers that their duties must be read through a human rights lens, and

12-15. Positive Duty to Eliminate Disability Discrimination

Question 12 — Who should the positive duty apply to?

The positive duty must apply to all duty holders, including public authorities, state institutions, and private sector entities, without exemption.

This must explicitly include:

• police, prisons, and corrective services,
• courts and tribunals,
• child protection agencies, and
• contracted service providers delivering programs or facilities on behalf of government.

Disabled people are overrepresented in every arm of the criminal legal system. Aboriginal and Torres Strait Islander women and girls with disability are disproportionately targeted, criminalised, and incarcerated. Yet the carceral state, the very body responsible for much of this harm, is rarely held to account under the Disability Discrimination Act (DDA).

A positive duty must require government and justice agencies to identify, prevent, and eliminate disability discrimination within their policies, practices, and environments. Without this, those most affected, people with disability who are criminalised, institutionalised, or impoverished, will remain unprotected.

Question 13 — Lessons from the Sex Discrimination Act positive duty

The experience under the Sex Discrimination Act shows that a positive duty must be backed by clear regulatory powers, proactive monitoring, and meaningful enforcement. A duty without oversight risks becoming symbolic.

Key lessons include:

• Independent oversight: The Australian Human Rights Commission (AHRC) must have the power to monitor compliance, issue enforceable notices, and investigate systemic breaches.

• Cultural change over compliance: For disability discrimination, change will not come from checklists or policies but from transforming institutional cultures, especially in policing, prisons, and community corrections, where ableism and punishment of disability are entrenched.

• Lived experience participation: The design and implementation of the duty must include people with disability, particularly those who have been criminalised, as equal partners and advisers.

The positive duty must go beyond the workplace. It should extend to any setting where people with disability come into contact with state power: custody, court, detention, healthcare, and housing, where the risk of discrimination and harm is greatest.

Question 14 — Costs, benefits, and impacts for duty holders

The main “cost” of compliance is not financial but cultural: the cost of shifting from a reactive, defensive model of risk management to a proactive, rights-based approach. For prisons, police, and other state bodies, this would require:

• auditing policies and practices that currently disadvantage or endanger people with disability;

• embedding trauma-informed, culturally safe practices; and

• resourcing training led by people with lived experience.

The benefits are immense. A positive duty would prevent harm before it occurs, reduce litigation costs, and promote genuine inclusion and safety. For communities, it could mean

Question 15 — Exceptions or limits to application

There should be no exceptions to the application of a positive duty. Exemptions are the mechanism through which discrimination is normalised. When prisons, police, or security agencies are exempted from their human rights obligations, people with disability, particularly Aboriginal and Torres Strait Islander women and girls, pay the price through continued violence, coercion, and neglect.

If the duty is to be meaningful, it must apply universally, with proportionate expectations based on resources and scale, but not with carve-outs for powerful institutions.

In summary:

A positive duty is only transformative if it shifts responsibility from the individual to the institution, from the person experiencing discrimination to the structures that produce it. For criminalised and incarcerated women and girls with disability, this reform could finally open a path to accountability and prevention in places where discrimination has long been routine and invisible.

16-18. Stand-Alone 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 clear, stand-alone duty would make obligations visible and enforceable.

Currently, the expectation to make adjustments is too easily ignored, especially in carceral, court, and community-supervision settings. For women and girls in prison, “reasonable adjustment” is often treated as optional or impossible due to “security” or “risk”. As a result, people with disability are routinely denied access to essential supports: medication, communication aids, mobility devices, interpreters, and even safe accommodation.

A stand-alone duty would shift responsibility away from the person with disability and onto the institution. It would make it unlawful to fail or refuse to provide an adjustment unless doing so would impose unjustifiable hardship, creating much-needed clarity for both people with disability and duty holders. It would also support a cultural shift toward proactive accessibility rather than reactive denial.

Question 17 — Should the scope of the duty apply only to the existing areas of public life, or extend to other contexts?

The duty must extend to all contexts and settings where people with disability interact with state or institutional power, including prisons, policing, courts, community corrections, and detention facilities.

For criminalised women and girls, these are the very spaces where discrimination and harm are most acute, yet they often fall through legislative gaps because they are not seen as “public life” in the conventional sense.

Inside prisons, women and girls are punished for behaviours related to disability or trauma. Adjustments such as modified routines, sensory regulation supports, or access to healthcare are rarely available. Extending the duty beyond narrow definitions of “public life” would ensure that state custody and carceral environments, some of the most inaccessible spaces in Australia, are held to the same standards as schools, workplaces, and service providers.

Question 18 — Would removing the word “reasonable” from “reasonable adjustments” create any unintended consequences?

No. Removing “reasonable” would strengthen, not weaken, the law.

The term has long been misused to justify inaction, allowing duty holders to decide what they consider “reasonable” rather than focusing on the needs and rights of the person with disability. Its removal would align the Act with the principle that all necessary adjustments must be provided up to the point of unjustifiable hardship.

This change would also help dismantle the paternalistic framing that positions disabled people as asking for favours rather than asserting rights. In prisons and other institutions, “reasonableness” has too often been weaponised to deny basic accessibility and care. Removing it restores clarity: if an adjustment is needed and possible, it must be made.

In summary:

Replacing “reasonable adjustments” with a stand-alone duty to provide adjustments would make the law simpler, fairer, and more enforceable. It would directly benefit those currently least protected, people with disability whose rights are most frequently denied by the state.

20 — 22. Inherent Requirements of Work

Question 20 — Encouraging consultation and consideration of adjustments

The National Network supports the Disability Royal Commission’s recommendation to require employers to consider the nature and extent of any adjustments and to consult directly with the person with disability before making employment decisions.

Too often, disabled women who are criminalised or recently released from prison are screened out of jobs or training programs without any conversation about what supports might allow them to participate. Employers frequently assume incapacity rather than exploring flexibility or redesigning roles.

A legal requirement to consult would help shift these decisions from assumptions to actual dialogue, giving people with disability a voice in identifying what makes work safe, sustainable, and possible for them.

Question 21 — Other amendments to support engagement

Further amendments could include:

• Mandatory disclosure of inherent requirements in all job advertisements and position descriptions, so applicants understand expectations before applying.
• A duty to document the consultation process and the adjustments considered, ensuring transparency and accountability.
• Funding for peer-led employment support and workplace education delivered by people with disability, including those with lived experience of criminalisation.
• Explicit protection against retaliation or withdrawal of offers when a person requests adjustments or discloses a disability.

For women with disability exiting prison, meaningful employment is a key protective factor against re-incarceration. These changes would remove structural barriers that currently lock people out of work on the basis of stigma and inflexible job design.

Question 22 — Further amendments to the definition of ‘inherent requirements’

The definition should be clarified to ensure it cannot be used as a proxy for discrimination. “Inherent requirements” should refer only to the core functions of the job, not the employer’s preferred way of performing them. It must require consideration of whether:

• the work can be done safely with adjustments;
• the tasks described are genuinely essential, not administrative convenience; and
• the assessment process has been free from bias, risk language, or stereotypes about disability, mental health, or criminal history.

The Act should make clear that “inherent requirements” are not a licence to exclude but a tool to ensure safe, fair participation.

In summary:

Embedding consultation, transparency, and an explicit requirement to consider adjustments would prevent employers from making unilateral, assumption-based decisions that exclude disabled people, particularly Aboriginal and Torres Strait Islander women and girls leaving prison, who face intersecting discrimination based on disability, race, gender, and criminalisation.

23-26. Exclusion and Exclusionary Discipline

Question 23 — Should the concepts of exclusion and exclusionary discipline be defined in the DDA?

Yes. The Disability Discrimination Act (DDA) must clearly define exclusion and exclusionary discipline and make it explicit that suspension, exclusion, and informal removal of students on the basis of disability are forms of discrimination.

Across the country, exclusionary discipline is the first step in the criminalisation of children with disability, particularly Aboriginal and Torres Strait Islander girls. Many of the women and girls that organisations such as Sisters Inside walk alongside, were first suspended or expelled from school because of behaviours linked to trauma, neurodivergence, or unmet disability support needs. Those early exclusions set in motion a lifetime of surveillance and punishment.

Defining exclusionary discipline in the DDA would ensure that schools cannot disguise discriminatory removal under neutral language such as “safety” or “non-compliance.” The definition should include:

• suspension, expulsion and formal exclusion;
• “soft” or informal exclusion (sending students home early, refusing re-enrolment, or isolating them within the school); and
• refusal to admit or readmit a student because of disability or behaviour related to disability.

Question 24 — Should there be exceptions or limits on when exclusion is unlawful? No. There should be no general exceptions that allow schools to remove students on the basis of disability.

Current laws already permit exclusions under vague notions of “safety” or “order,” which are routinely weaponised against disabled and neurodivergent students. Every suspension should instead trigger a duty to review and provide supports or adjustments, not a right to expel. If temporary removal is ever absolutely necessary, it must be:

• a last resort after all other interventions have been exhausted,
• time-limited and subject to external oversight, and
• accompanied by a clear, resourced plan for re-engagement in education.

Education is a human right. No child should lose access to learning because the system has failed to create inclusive and supportive environments.

Question 25 — Should any state or territory provisions be adopted? While some state and territory frameworks (such as the ACT model) include safeguards like mandatory consultation and exhaustion of alternatives, national consistency is urgently needed. The DDA should incorporate the strongest elements from those models, particularly:

• explicit requirements for consultation with the student and family;
• obligations to demonstrate that all reasonable adjustments and supports were provided before exclusion; and
• independent review mechanisms for any exclusion decision.

Importantly, the national framework must go further by embedding cultural safety and trauma-informed practice, recognising that Aboriginal and Torres Strait Islander students

Question 26 — Higher education and vocational education and training

The same principles must apply across all education sectors.

Discrimination through exclusion also occurs in TAFE, university, and training settings, where disabled students are refused placements, dropped from courses, or pressured to withdraw when institutions fail to make adjustments.

A consistent national approach should:

• make exclusionary discipline explicitly unlawful across all levels of education;
• extend the duty to provide adjustments to all education and training providers; and
• ensure accessible, trauma-informed complaint pathways (for example through the National Student Ombudsman).

In summary:

Exclusionary discipline is a driver of systemic injustice. By defining and prohibiting exclusion and suspension in the DDA, and by removing all loopholes that allow schools and institutions to exclude disabled students, Australia can begin to dismantle the school-to-prison pipeline that continues to funnel disabled girls, particularly Aboriginal and Torres Strait Islander girls, from classrooms into custody.

27-30. Offensive Behaviour, Harassment, and Vilification

Question 27 — How could the DDA be amended to protect people with disability from offensive behaviour and/or harassment?

The Disability Discrimination Act (DDA) must include a clear prohibition on offensive behaviour, harassment, and vilification, with particular attention to institutional and systemic forms of such conduct.

For criminalised and incarcerated people with disability, harassment and humiliation are not confined to individual acts, they are built into the daily operation of the system: strip searches, verbal abuse, denial of medication, mockery by staff, and public degradation.

The DDA should be amended to make it unlawful to:

• engage in any act, public or institutional, that humiliates, offends, intimidates, or degrades a person or group because of disability;
• allow or condone environments, including prisons, police cells, courts, or government facilities, that normalise such behaviour; and
• fail to take action when such conduct is reported or observed.

Importantly, protection must extend to collective and public harassment, not only one-to-one interactions. The Act must recognise that violence and vilification often occur through state institutions, not just between private citizens.

Embedding a prohibition on offensive behaviour would make explicit that ableist harassment by public officials and within state systems is unlawful, not simply “part of the job.”

Question 28 — How should “offensive behaviour” and “harassment” be defined? Definitions should reflect both social and structural harm, not only individual insult.

The DDA should define offensive behaviour as any act or conduct, in public or institutional settings, that is reasonably likely, in all the circumstances, to humiliate, offend, intimidate, degrade, or distress a person or group because of disability, whether actual or perceived. Harassment should be defined as sustained or repeated conduct, or a single egregious act, that undermines the dignity, autonomy, or safety of a person with disability.

These definitions must explicitly:

• cover behaviour by state actors, including police, correctional officers, and government staff;
• extend to digital and online spaces, recognising the role of social media in spreading ableist hate and mockery;
• include verbal, physical, visual, and symbolic forms of harassment and public humiliation.

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

No. Exemptions legitimise harm. The routine vilification and degradation of people with disability is already normalised under the guise of “security,” “policy,” or “free speech.” Introducing further carve-outs would reinforce the idea that disabled people’s dignity is negotiable.

Any exemption, such as those in the Racial Discrimination Act, risks being misused by powerful actors (media, political figures, or state agencies) to justify ableist rhetoric or inhumane treatment.

Free expression cannot be a shield for violence, mockery, or hate. The right to dignity and safety must prevail.

If exemptions are retained at all, they must be narrowly confined to good-faith advocacy by people with disability themselves and artistic or academic expression led by disabled people, never by those outside the community.

Question 30 — Gaps in the legislative framework and vilification protections Criminalisation cannot end vilification, particularly when police and prisons are themselves frequent perpetrators of ableist abuse.

The DDA must create civil, community-based protections against vilification that focus on prevention, accountability, and education rather than punishment.

Specifically, the Act should:

• create civil remedies for systemic or institutional vilification, such as when government agencies or media outlets promote harmful stereotypes;
• require public authorities to take reasonable steps to prevent vilification, including through training and policy reform; and
• recognise intersectional vilification, particularly for Aboriginal and Torres Strait Islander people with disability, whose experiences of racialised ableism are compounded by colonial policing and surveillance. Abolitionist practice demands transformative justice rather than punitive enforcement. The goal should not be to expand carceral responses, but to create structural change: education, accountability, and resourcing for communities to respond to harm safely and collectively.

In summary:

Vilification and offensive behaviour are tools of social control. They are used to silence, humiliate, and disappear disabled people, especially those already criminalised. Amending the DDA to prohibit these acts, without exemptions, and to recognise state-sanctioned vilification as unlawful, would be a critical step toward dignity, visibility, and justice for all people with disability.

31-32. Ensuring the DDA Covers Policing

31. How could the DDA be amended to ensure that it covers policing?

Our position: The DDA must cover all policing functions and contexts, from first contact to custody, so people with disability are protected whether they are victims, witnesses, bystanders, or suspects. Protection must not turn on role or label; it must travel with the person.

Preferred legislative approach (clear and strong):

Create a dedicated Part in the DDA for Policing and Justice System Duties, rather than relying only on the generic “services” definition. This avoids the historic carve-out that has excluded suspects and removes interpretive ambiguity.

That Part should:

• expressly apply to: stops and approaches, questioning, searches (including strip- searches), use of force, welfare checks, bail decisions by police, transport, watch- house custody, court cells, forensic procedures, and interactions with contracted personnel (e.g., private security, prisoner transport).
• Impose a positive duty on police agencies to take reasonable and proportionate measures to eliminate disability, plus a stand-alone duty to provide adjustments

Require consultation and documentation: before refusing an adjustment or invoking “operational necessity,” police must record the person’s stated needs, options considered, and why less-restrictive alternatives were not used.

Enable systemic enforcement: empower the AHRC to investigate patterns (strip searches, criminalised survivorship in DFV, use-of-force disparities), issue compliance notices, accept enforceable undertakings, and require public reporting.

Mandate disaggregated data collection (including disability, gender, and Aboriginal and Torres Strait Islander status) on stops, searches, force, refusals of adjustments, and custodial harms.

Create diversion-first obligations where disability is apparent or disclosed (rapid access to interpreters/communication partners, cognitive disability screening with non-carceral referral pathways, and priority to health/peer supports over criminalisation).

32. Are there specific policing/justice circumstances that should be excluded from the DDA? No. Exclusions re-create the very gap this reform is meant to close. In practice, “security” and “operational necessity” are routinely used to deny basic accessibility and dignity, especially to Aboriginal and Torres Strait Islander women and girls with disability, during arrest, search, transport and custody.

If Parliament insists on a narrow safety valve, it must be tightly drawn and never function as an exemption from discrimination obligations:

Limit to immediate, imminent risk of serious harm where no reasonable adjustment is physically possible in the moment.

Require strict safeguards: real-time supervisory approval where practicable, immediate documentation, prompt post-incident review (including body-worn video), notification to an independent oversight body, and mandatory learning actions (policy change, training, remediation).

Clarify that the valve does not displace the duties to provide adjustments and to avoid discriminatory conduct; it only governs how duties are met when seconds matter.

Why this matters:

People with disability, especially those who are poor, racialised, and criminalised, encounter policing as a site of routine ableist harm: criminalised survivorship in DFV, escalation of disability-related distress, unlawful strip-searches, denial of medication and communication aids, and punitive responses to behaviours linked to trauma or cognitive disability. A clear, enforceable DDA framework over policing is essential to stop harm before it happens, ensure adjustments during interactions, and deliver systemic accountability, not just case-by-case complaints that people in custody can rarely bring.

33-37. Exemptions under the Disability Discrimination Act

Question 33 — Could any of the permanent exemptions be narrowed or updated?

Yes. Many of the permanent exemptions undermine the intent of the Act. They should be reviewed and substantially narrowed, retaining only what is essential to genuine public interest, not administrative convenience.

Several exemptions legitimise state or institutional discrimination. In particular:

• Section 47 (acts done under statutory authority) and Section 52 (migration) directly permit harm by government actors and must be re-examined. These provisions enable state-sanctioned discrimination, such as the continued exclusion of migrants and refugees with disability and the operation of segregated employment instruments, contradicting both the CRPD and Australia’s human-rights obligations.
• Section 46 (superannuation and insurance) perpetuates ableist risk profiling. Any remaining actuarial discrimination must be transparently justified, publicly reported, and subject to independent review.
• Section 53 and 54 (combat and peacekeeping) should be subject to the same duty to provide adjustments and only exclude duties where an essential, inherent requirement cannot be met even with adjustments.

All exemptions should be reframed as temporary, reviewable, and strictly necessary. The baseline must always be that discrimination is unlawful—any departure from that principle must be justified through open, transparent review with disability-community oversight.

Question 34 — Should the AHRC be able to grant special-measures certificates?

Yes, but with strong safeguards and co-design. Special-measures certificates could help reassure duty holders and encourage proactive inclusion, if and only if they are:

• co-designed and led by people with disability,
• subject to independent review and public reporting, and
• non-mandatory (voluntary assurance, not pre-approval).

Certificates must never become a shield for tokenistic or paternalistic programs. Any use of “special measures” must be aimed at substantive equality and structural change, not charity or segregation.

Question 35 — Should a definition for special measures be added?

Yes. The Act should explicitly define special measures as:

“Actions taken for the purpose of achieving substantive equality for people with disability, consistent with the Convention on the Rights of Persons with Disabilities.”

This language ensures alignment with international law and clarifies that special measures are positive, time-limited, and transformative, tools for equity, not permanent exceptions.

Definitions should also clarify that special measures cannot be used to justify:

• segregated or sub-minimum-wage employment,
• residential or educational segregation, or
• programs that isolate rather than empower disabled people.

Questions 38—40 — Assistance animals

These questions are not relevant to this submission. The National Network’s focus is on the structural and systemic discrimination experienced by criminalised and incarcerated women and girls with disability, which sits outside the operational issues raised here.

41-44. Disability Action Plans

Question 41 — Should there be minimum requirements for action plans?

Yes. Disability Action Plans should be mandatory for all public authorities and large institutions, and strongly encouraged for community and private organisations. At minimum, each plan should:

• be co-designed with people with disability, particularly those with intersecting identities including criminalisation, poverty, and First Nations identity;
• include clear, measurable actions, timelines, and responsibilities;
• demonstrate ongoing consultation and feedback loops with people affected by the organisation’s work (not just one-off consultation);
• outline how the organisation will eliminate discriminatory practices, not just increase “access”;
• include commitments to abolitionist accessibility, ending exclusionary practices such as strip-searching, forced segregation, and punitive responses to distress or disability- related behaviour; and
• require public reporting on progress and barriers.

Plans should not be symbolic. They should operate as a mechanism for real accountability, backed by independent review and enforcement.

Question 42 — Should the AHRC be able to reject inadequate plans?

Yes. The Australian Human Rights Commission should have the power to reject or return plans that fail to meet minimum standards or that have not been developed with meaningful participation of disabled people.

Organisations often produce “plans” that amount to branding exercises, not transformation. Giving the AHRC authority to set benchmarks and refuse tokenistic submissions would help shift the culture from compliance to change.

To be effective, the AHRC must also co-design its guidance with people with disability, including those most often excluded from consultation, such as criminalised women, people in institutions, or those without formal advocacy representation.

Question 43 — Should there be a set validity period for action plans? Yes. Action Plans should be valid for a maximum of four years, with a mid-term review at two years. This would align planning cycles with broader government and funding processes while ensuring accountability for progress rather than promises. Before renewal, organisations should publish an evaluation outlining:

• what actions have been completed,
• what barriers remain,
• what feedback was received from people with disability, and
• how these learnings will inform the next plan. Renewal should not be automatic; plans must demonstrate progress to remain registered.

Question 44 — Other recommendations for improving the process

• Accessibility and public transparency: All plans must be available in multiple accessible formats (Easy Read, audio, Braille, community language, plain language).

• Intersectional focus: Plans must address the needs of people facing multiple forms of oppression, including racism, poverty, gendered violence, and criminalisation.

• Independent oversight: Establish a community-led monitoring body, made up of disabled people, including those with lived experience of incarceration, to review and report annually on Action Plan implementation across sectors.

• Funding equity: Provide dedicated funding for small and community-controlled organisations to co-design and implement their plans; otherwise, only large institutions will be able to comply.

• Integration with positive duty: Action Plans should operate as a practical roadmap for fulfilling the positive duty to eliminate discrimination, rather than a separate or voluntary exercise.

In summary:

Disability Action Plans should become living, enforceable documents that build community accountability and prevent harm, especially in sites of state power like prisons, family policing systems, and police. A plan that sits on a website but changes nothing for disabled people living under surveillance or control is not an act of inclusion, it’s a form of deception.

Questions 45—47 — Disability Standards and self-reporting

These questions fall outside the scope of this submission. The National Network’s focus is on systemic discrimination and structural change affecting criminalised and incarcerated women and girls with disability. The technical compliance and reporting mechanisms under the Disability Standards are not areas in which we hold direct expertise or engagement.

48-51. Modernising and strengthening the Disability Discrimination Act

Question 48 — Drawing on other legislative examples

Rather than importing narrow compliance models from other anti-discrimination laws, reform of the Disability Discrimination Act (DDA) should draw on laws that have explicit positive duties, community accountability mechanisms, and participatory oversight. For example:

• The Respect@Work reforms to the Sex Discrimination Act introduced a positive duty to eliminate discrimination, requiring proactive prevention rather than reactive complaints.

• The Victorian Equal Opportunity Act embeds a substantive equality framework that recognises systemic causes of discrimination.

• The Tasmanian Disability Rights, Inclusion and Safeguarding Act 2024 demonstrates the value of embedding co-design, consultation, and public reporting.

These models show that real progress comes not from compliance, but from mandatory engagement with people affected, transparent accountability, and structural reform.

Question 49 — Public guidance and community education Guidance materials must move beyond technical compliance toward community education about rights, resistance, and redress.

Current guidance is written for institutions, not for disabled people navigating violence, surveillance, and criminalisation. The AHRC should co-create plain-language, Easy Read and community-designed resources that:

• explain rights in carceral and coercive settings (police, prisons, family policing, mental- health systems);

• outline how to make complaints safely when a person fears reprisal;

• include case studies showing systemic discrimination (e.g., misidentification of women and girls with cognitive disability as perpetrators of violence).

Disabled people, especially those who are criminalised, must be recognised as experts in law reform, not merely subjects of it.

Question 50 — Ensuring the DDA remains fit-for-purpose To remain fit-for-purpose, the DDA must:

• explicitly address intersectionality, recognising that discrimination is compounded by race, gender, poverty, and criminalisation;

• extend protections into sites of state power: policing, detention, family policing, and forensic mental-health systems, where violations are most severe;

• shift from a complaints-based model to a preventative model through a positive duty on all public authorities;

• require regular independent review led by disabled people; and

• ensure First Nations leadership in interpreting and applying disability rights in ways that align with self-determination and sovereignty.

Future-proofing the DDA means making it responsive to technological change, but more importantly, to social and political realities of oppression and resistance.

Question 51 — Other issues for consideration

The DDA cannot be “modernised” while it continues to co-exist with laws and practices that actively harm disabled people: forced treatment, imprisonment, strip-searching, indefinite detention, and child removal.

A modern, just DDA must confront the reality that discrimination is often state-sanctioned. Reform must:

• remove all carceral exemptions that permit discrimination in prisons, mental-health institutions, and immigration detention;
• establish binding obligations on governments to collect and publish disaggregated data on disability within criminal-legal systems;
• recognise criminalisation as a form of discrimination; and
• fund community-led, abolitionist disability justice initiatives, not compliance bureaucracies.

Closing statement

The Disability Discrimination Act 1992 was written in a world where discrimination was seen as an interpersonal problem.

Today, we recognise it is structural, systemic, and often enforced by the state itself. To be fit for the future, the Act must not simply prohibit discrimination, it must dismantle the conditions that make discrimination possible.

For the National Network, that means an Act that protects the most targeted: Aboriginal women and girls with disability who are criminalised, mass incarcerated, institutionalised, and silenced. Until the law is rewritten with them, not for them, the promise of equality will remain an illusion.

Yours sincerely

22 October 2025