Amending the definition of direct and indirect discrimination

Disability Discrimination Act Review—Submission

Dr John McPherson AM

20250821

Contents

Part 1 - Updating understandings of disability and disability discrimination

• Definition of disability
• Addressing intersectionality
• Recommendation 4.23 – Amending the definition of direct discrimination
• Recommendation 4.24 – Amending the definition of indirect discrimination
• Recommendations 4.33 and 4.34 – Interpreting the Disability Discrimination Act in line with the Convention on the Rights of Persons with Disabilities

Part 2 - Stronger protections to stop discrimination before it happens

• Recommendations 4.27 and 4.28 – Positive duty for duty holders to eliminate discrimination

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

• Recommendations 4.25 and 4.26 – Strengthening the duty to provide adjustments
• Recommendation 4.32 – Definition of and considerations for unjustifiable hardship
• Recommendation 7.26 – Expanding the factors considered by employers when determining if an employee can carry out the inherent requirements of particular work
• Recommendation 7.2 – Exclusionary discipline and suspension

Part 4 - Improving access to justice

• Recommendations 4.29 and 4.30 – Offensive behaviour and vilification protections
• Recommendation 8.19 – Services provided by police officers

Part 5 - Exemptions

Part 6 - Modernising the Disability Discrimination Act

• Assistance animals
• Disability action plans

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Disability Standards

Part 7 - Further options for reform

Part 1 - Updating understandings of disability and disability discrimination

Definition of disability

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

A definition that combines the social model and the human rights model of disability is required. Environments and services—whether human, concrete or digital—can be usually be constructed or fabricated to include or exclude people with disabilities. People with disabilities have every right to access these environments and services.

Material from the Convention on the Rights of Persons with Disability (CRPD) might be incorporated. These use the term ‘impairment’.

Article 1—Purpose

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

Article 2—Definitions

“Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;

2. What factors should be considered in developing a new definition of disability? Shifting away from a deficit-based definition of disability is desirable. Stigmatising terms such as ‘malfunction, malformation and disfigurement’ must be removed. Neurodiversity should not be termed as a ‘disorder, illness or disease’ but recognised as part of a cognitive continuum that has no clear boundaries and is part of the human condition.

Addressing intersectionality

3. Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes? Removing or amending the comparator test will improve protections for people with intersecting identities.

The Disability Discrimination Act (DDA) should state that claims alleging unlawful discrimination include discrimination on the basis of intersecting or combined protected attributes, including multiple disabilities.

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? A clear definition of ‘Intersectionality’ would be useful in DDA Section 4 Interpretation.

Recommendation 4.23 – Amending the definition of direct discrimination 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 per the Disability Royal Commission recommendation the need to make a comparison when proving direct discrimination should be removed. Instead, as recommend, the focus should be on the unfavourable treatment or detriment that the person with disability has faced.

6. How should the burden of proof be addressed in the Disability Discrimination Act? As per the Disability Royal Commission recommendation the DDA should be amended to shift the burden of proof so that the respondent would need to prove that the reason for their treatment of the person with disability was not because of the person’s disability.

Recommendation 4.24 – Amending the definition of indirect discrimination 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? The definition could be simplified by removing the reasonableness element entirely.

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

   Please expand on your response.

As per the Disability Royal Commission recommendation removing the reasonableness element and focusing consideration on only the exception of unjustifiable hardship is supported.

The Disability Royal Commission stated that there appears to be several layers of exceptions or defences in the reasonableness element. This best addressed by removing the reasonableness element.

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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 Australian Human Rights Commission and Queensland Human Rights Commission have said that the inability to comply requirement is unnecessary and confusing. Removal is supported.

The ‘disadvantage people with disability’ requirement is already enough to capture evidence of an inability to comply. The Australian Human Rights Commission and other stakeholders have expressed that removing the inability to comply requirement would simplify the definition of indirect discrimination. Once again, this is supported.

Recommendations 4.33 and 4.34 – Interpreting the Disability Discrimination Act in line with the Convention on the Rights of Persons with Disabilities 10. Should the Disabilities Convention be included in the objects provision of the Disability Discrimination Act?

The CRPD should be clearly and unambiguously included in Section 3— Objects of the DDA. Amending Section 3—Objects of the DDA to include the CRPD will promote the interpretation of the DDA in a way that is consistent with Australia’s obligations under the CRPD.

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?

The DDA should be expressly required to be interpreted in a way that is beneficial to people with disability.

Currently, the courts may consider the CRPD when interpreting the meaning of provisions in the DDA. However, this is up to the court to decide. This level of discretion falls short of Australia’s obligations under the CRPD.

Part 2 - Stronger protections to stop discrimination before it happens Recommendations 4.27 and 4.28 – Positive duty for duty holders to eliminate discrimination 12. If there was a positive duty in the Disability Discrimination Act, who should it apply to?

As per the recommendation of the Disability Royal Commission there should be a positive duty on all duty holders, including public and private sector entities, modelled on the duty in the Sex Discrimination Act in order to eliminate discrimination.

13. Are there lessons from the operation of the positive duty in the Sex Discrimination Act that could be incorporated into a positive duty in the Disability Discrimination Act?

The Disability Royal Commission was of the opinion that there should be a positive duty on all duty holders, including public and private sector entities, modelled on the duty in the Sex Discrimination Act. This is supported.

14. What costs, benefits and other impacts would duty holders experience in meeting a positive duty under the Disability Discrimination Act?

The positive duty would require duty holders to take reasonable and proportionate measures to eliminate disability discrimination, as far as possible. This provides that the size of a person’s business or operations, and a person’s resources, should be taken into account when determining whether a measure is reasonable and proportionate. The unjustifiable hardship provisions of Section 11—Unjustifiable hardship can be used to determine what is ‘reasonable and proportionate’.

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

The unjustifiable hardship provisions of Section 11—Unjustifiable hardship can be used to determine limits of positive duty and what is ‘reasonable and proportionate’.

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

Recommendations 4.25 and 4.26 – Strengthening the duty to provide adjustments

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?

The creation of a stand-alone duty to provide adjustments would better assist people with disability and duty holders to understand their rights and obligations. It would clarify responsibilities and remove ambiguity.

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?

The Disability Royal Commission recommended that the stand-alone duty should apply ‘generally to all contexts and settings’. This is supported.

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

It is unlikely that removing the word ‘reasonable’ from the term ‘reasonable adjustments’ would create any unintended consequences. Rather it would focus the attention of courts and duty holders on the unjustifiable hardship provisions. In the instances where a person did not disclose their disability the courts would doubtless make accommodation.

Recommendation 4.32 – Definition of and considerations for unjustifiable hardship

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.

The Disability Royal Commission amendment as proposed is supported.

The Disability Royal Commission sensibly recommended that additional factors should be taken into account when deciding whether the making of a specific adjustment would impose unjustifiable hardship on duty holders:

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

The DDA does not currently require either.

The Disability Royal Commission also recommended requiring duty holders to document factors they considered, and give reasons for claiming unjustifiable hardship. This is also supported.

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

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 Disability Royal Commission recommendation that the DDA be amended to include two additional factors that must be considered in determining whether a prospective or existing employee would be able to carry out the inherent requirements of particular work is supported. These are:

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

21. Are there other amendments to the Disability Discrimination Act that could support engagement between prospective or current employers and prospective or current employees to better understand the inherent requirements of a job?

The Productivity Commission’s 2004 review observed that while a statutory definition of ‘inherent requirements’ could be introduced the most practical and effective approach would be to address, in guidelines, the factors that might be taken into account when identifying inherent requirements. The development of a statutory definition of ‘inherent requirements’ with accompanying Guidelines is supported.

22. Should any other amendments be made to the definition of inherent requirements, including factors that should be considered when deciding whether a person could carry out the inherent requirements of a job?

Currently, an employer is also not required to inform an applicant as to whether any reasonable adjustments will be made to assist them to meet

Recommendation 7.2 – Exclusionary discipline and suspension

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

The concepts of exclusion and exclusionary discipline should be defined in the DDA. The Disability Royal Commission considered that expressly clarifying that exclusion and suspension can constitute discrimination would assist in ensuring that students with disability are able to effectively remain engaged and supported in their education, both during and following the use of exclusionary discipline.

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

There should be exceptions or limits on when exclusion is unlawful.

Expressly including ‘exclusion’ as a ground for discrimination in the DDA may raise concerns that pre-existing disability learning and support plans and other approved assistive practices for students, which are agreed by the students and their parents, could be considered ‘exclusionary’ under the proposed amendment.

Section 45 of the DDA and 10.5(2) of the Education Standards provide it is not unlawful for an education provider to provide special measures (including specialised units or institutions) intended specifically for the benefit of students with disability. The Education Standards provide that special measures can take the form of programs or initiatives that afford students with disability, or with a particular disability, benefits, grants, programs, goods, or access to facilities, services or opportunities to meet their special needs in relation to education and training.

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

Any provisions that align with the Objects of the DDA and with the CRPD might be considered.

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

In addition to the DDA, the National Student Ombudsman, while not designed exclusively for exclusionary discipline complaints, may provide a pathway for consideration of such complaints by higher education students, including by referring such complaints, with the consent of the complainant, to appropriate bodies including the Australian Human Rights Commission.

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Part 4 - Improving access to justice

Recommendations 4.29 and 4.30 – Offensive behaviour and vilification protections Harassment and offensive behaviour

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

A prohibition on offensive behaviour because of a person’s disability, modelled on section 18C of the Racial Discrimination Act (Recommendation 4.29) is supported.

The Disability Royal Commission recommended a new provision making it unlawful to do an act, otherwise than in private if:

• the act is reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person or group of people

• the act is done because of the disability of the other person or because some or all of the people in the group have or are perceived by the first person to have a disability.

28. If the Disability Discrimination Act were to prohibit offensive behaviour and/or harassment, how should these terms be defined? The definition in the Racial Discrimination Act might be used as a model for DDA definitions.

29. Should there be exemptions for any behaviour, similar to the Racial Discrimination Act? The Racial Discrimination Act contains exemptions including where something is said or done in the performance, exhibition or distribution of an artistic work or for any genuine academic, artistic or scientific purpose. These might form the basis for exemption in the DDA.

Vilification

30. Given the recent legislative developments, are there any further gaps in the legislative framework that could be addressed by amendments to the Disability Discrimination Act to protect people with disability from vilification? The Disability Royal Commission recommended a new provision to better protect people with disability from vilification. Vilification was seen as conduct more serious and harmful (including the incitement of hate or threatening violence because of a person’s disability) than the offensive behaviour provision in recommendation 4.29 (Recommendation 4.30). This is supported.

During its consideration of the Criminal Code Amendment (Hate Crimes) Bill 2024, the Senate Legal and Constitutional Affairs’ Legislation Committee considered evidence from a number of stakeholders, including People with Disability Australia, who argued that serious vilification should be criminalised. This is supported.

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Recommendation 8.19 – Services provided by police officers

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

The Disability Royal Commission recommended that ‘services provided by police officers in the course of performing policing duties and powers’ be included in the DDA definition of Services. This is supported.

32. Are there any specific circumstances or situations relating to policing or justice that should be excluded from the application of the Disability Discrimination Act? Any changes to the DDA would need to be carefully calibrated so as not to inhibit police functions, whilst ensuring that people with disability are protected from discrimination, including as victims of crime, complainants, witnesses, and suspects. When police are providing a service or executing their duty in a non-service mode should be made clear.

Part 5 - Exemptions

33. Could any of the permanent exemptions be narrowed or updated, while balancing other policy considerations? Strictly time limiting Temporary Exemptions would be very useful.

The Department of Home Affairs has completed the Review into the Migration Health Requirement and the Significant Cost Threshold for visa applicants, with a focus on how to balance fairness in the migration system whilst containing public expenditure on health care and community services. The Review Report presented 9 findings with 11 proposed actions which would assist in minimising discrimination within the current function of the Migration Health Requirement. The actions should be implemented.

34. Should the Australian Human Rights Commission be given the power to grant special measures certificates? Enabling the Australian Human Rights Commission to grant ‘special measure certificates’, which could help provide assurance to duty holders who may be reluctant to undertake special measures because they are concerned about breaching their obligations under the DDA, is supported.

35. Should a definition for special measures be added to the Disability Discrimination Act? It would be helpful to include a clarifying definition for special measures to ensure they are interpreted as positive measures and align with international law obligations. For example, in the Sex Discrimination Act, special measures are defined as measures ‘for the purpose of achieving substantive equality’.

36. Should a definition for temporary exemptions be added to the Disability Discrimination Act? A definition of Temporary Exemptions would be welcome. Some Temporary Exemptions applied for under the DSAPT have become almost permanent and have been in place for over a decade. The Australasian Rail Association exemption on level crossings for example.

Part 6 - Modernising the Disability Discrimination Act

37. Would you recommend any changes to the legislative process of granting temporary exemptions? Adding specific criteria for the Australian Human Rights Commission to use in deciding whether to grant an exemption could provide more certainty is supported.

Assistance animals

38. How could the protections for assistance animals be clarified for both people with disability and duty holders, including in relation to evidence of training, evidence or standards of hygiene and behaviour that are appropriate for a public place? A nationally consistent training and accreditation regime would give, trainers, handlers and the public confidence that an animal met the appropriate standards of assistance, hygiene and behaviour.

Evidence of accreditation to these national standards by a recognised trainer would give handlers, service providers and members of the public confidence in the animal. This is covered to a degree in Part 2, Section 54A of the DDA and might be strengthened around national standards.

54A Assistance animals

(5) This Part does not render it unlawful for a person to request the person with the disability to produce evidence that:

(a) the animal is an assistance animal; or

(b) the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

39. Would legislative amendments or guidance materials be helpful to balance flexibility and certainty, or a mixture of both? A combination of both legislative amendments and guidance materials would be of most benefit. This approach has been taken with Disability Standards, with both a Standard and accompanying Guidelines being publicly available.

40. Should specific training organisations be prescribed under the Disability Discrimination Regulations? Specific training organisations should be prescribed under the Disability Discrimination Regulations. For people living in regional or remote areas who had no access to a prescribed trainer—and for who relocation for familiarisation and training was not possible—a means of demonstrating training of their animal to equivalent standards must be available.

The DDA already has this prescription requirement in Part 1, Section 9 and this should be actioned.

9 Carer, assistant, assistance animal and disability aid definitions

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Disability action plans

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

The Australian Human Rights Commission (AHRC) should definitely provide advice on the development and implementation of action plans. In addition, this might be strengthened through regulation. At bare minimum the action plan should clearly articulate:

• How discriminatory practice, infrastructure or services will be eliminated.
• The timelines for this process.
• How progress will be assessed and reported on to the AHRC.
• If the action plan was co-designed with members of the disability sector as per CRPD Article 4 requirements.

Article 4—General obligations

3. In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.

4. Should the Australian Human Rights Commission be able to reject action plans that fail to meet these requirements? The AHRC should be able reject action plans that failed requirements.

5. Should there be a set period of time for which an action plan is valid? There should be a set timeframe within which action plans will lapse. The AHRC might evaluate action plans on their scale and complexity and require that the expiry date be based on these individual circumstances.

The AHRC should require that outcomes of the evaluation of previous action plans be provided when submitting a subsequent action plan.

44. Are there any other changes to the action plan process that you would recommend? Action plans should be available in multiple accessible formats. Advice on how this is achieved could be provided by the AHRC. This is a CRPD requirement in Articles 9 and 21.

Article 9—Accessibility

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Article 12

1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:

• (b) Information, communications and other services, including electronic services and emergency services.

Article 21—Freedom of expression and opinion, and access to

information

States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in article 2 of the present Convention, including by:

• (a) Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost;

• (b) Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions;

• (c) Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities;

• (e) Recognizing and promoting the use of sign languages.

Disability Standards

45. How could compliance with and enforcement of the Disability Standards be improved? The Disability Royal Commission’s recommended that the DDA should be amended to introduce a positive duty on all duty holders, including both public and private sector entities is supported.

As suggested, the introduction of a positive duty would require duty holders to take reasonable and proportionate measures to eliminate disability discrimination. This means that duty holders would need to

ensure they are compliant with the Disability Standards to meet their obligations under the positive duty.

Providing the Australian Human Rights Commission with additional powers to enforce compliance with the Disability Standards will be beneficial.

Strengthening the Australian Human Rights Commission’s powers to enable it to:

• • apply to a court for civil penalty orders and injunctions
• • issue compliance notices
• • enter into enforceable undertakings.

is strongly supported.

46. Should the Disability Discrimination Act be amended to encourage relevant duty holders to self-report on their compliance with the Disability Standard(s) in disability action plans? Encouraging relevant duty holders to self-report on their compliance with the Disability Standard(s) in disability action plans is supported. The Premise Standards in particular has weak compliance reporting. It relies too strongly on building surveyors and certifiers.

Peter Shergold and Bronwyn Weir’s February 2018 report to the Building Ministers’ Forum (BMF), Building Confidence: Improving the effectiveness of compliance and enforcement systems for the building and construction industry across Australia1 found:

A building regulatory model that includes private certification carries with it an inherent potential for conflict of interest. That is not to say that a model where only a government official certifies building design and construction is entirely free from potential conflict. There is evidence that government processes can be open to poor practices. However, the private certification model will always have a significant potential for conflict of interest given the commercial relationship that must necessarily exist between the designer/builder and building surveyor. Even if the building surveyor is appointed by the owner, this appointment will be influenced by the builder and/or designer.

A nationally consistent reporting framework embedded in action plans may circumvent this to a degree.

47. Could the Australian Human Rights Commission provide additional guidance to duty holders regarding how to self-report on the Disability Standards in disability action plans? Giving the Australian Human Rights Commission the capacity to provide comprehensive guidance that is more strongly supported by the DDA and

1 https://www.pc.gov.au/ data/assets/pdf file/0008/393434/sub055-competition- analysis-2025-attachment2.pdf

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allowing it to reject plans that are not of an appropriate standard is supported.

Part 7 - Further options for reform

48. Are there examples of legislative provisions in Commonwealth or state and territory anti- discrimination law that could be drawn on to modernise or strengthen the Disability Discrimination Act? There are similarities and differences between the Commonwealth anti‑discrimination laws and the state and territory anti‑discrimination Acts. These differences mean there are many opportunities to learn lessons from other laws that could be applied to the DDA. A comparative study and investigation of what works best—and why—should be undertaken.

49. What additional guidance materials should be provided to the community, including duty holders, about the operation of the Disability Discrimination Act or specific amendments proposed in this paper? As per the Disability Standards, comprehensive Guidelines should be published that explain and illustrate the requirements of the DDA.

50. How can we ensure the Disability Discrimination Act remains fit-for-purpose into the future? Disability standards covering information technology, the pedestrian environment, housing, employment and so on would lift the burden of complaint from members of the public and place the burden on duty holders.

51. Are there any other issues with the Disability Discrimination Act that should be considered as part of this review? Education of magistrates would allow better understanding off the DDA and disability standards.

Part 2, Section 32 is quite clear on the lawful status of disability standards.

32 Unlawful to contravene disability standards

It is unlawful for a person to contravene a disability standard.

Judge Nicholas seemed unaware of this when he opined in Haraksin v Murrays Australia Limited (No 2) [2013] FCA 217 (14 March 2013)2. Breach of the Standards

85 The respondent was in breach of the Standards in August 2009. Were this not so, the respondent might have been able to accept a booking from the applicant allowing her to travel using the respondent’s service between Sydney and Canberra as she had

2 https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2013/217.html

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Senior Counsel’s Submission on Respondent’s Breach

Senior Counsel for the applicant submitted that the applicant was at all material times in and after August 2009 a person aggrieved by the respondent’s non-compliance with the Standards. In my view this submission is based upon a misconception as to the scope of s 46P and s 46PO(1) of the AHRC Act. Non-compliance with the Standards does not of itself provide a sufficient basis for a person to lodge a complaint under s 46P or to commence a proceeding under s 46PO(1). This is because non-compliance with the Standards does not of itself constitute unlawful discrimination.

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