To: Australian Government, Attorney-General’s Department
Submission to Disability Discrimination Act Review
DDAReview@ag.gov.au
Thank you very much for the opportunity to contribute to the review of the Disability Discrimination Act 1992 (Cth)(‘DDA’).
I make this submission as a mother of 2 children with disability (both now deceased). I have made 5 complaints of disability discrimination under the current legislative regime in the last 10 years. This experience led me back to university in my forties to study (undergraduate) law; I am currently in the final stages of completing my Masters of Research in law at Macquarie University.
As you are aware, there are many areas of the DDA that need improvement, from the individual complaints model, deficit language, the complicated and unnecessary distinction between direct and indirect discrimination, to the lack of positive duties. You will have received many submissions from experts and people with lived experience detailing these issues in eloquent ways, and I have touched upon them in this submission link.
I will therefore restrict this part of my submission to the main findings identified in my thesis, which consists of a critical analysis of the seminal but under-examined case of King v Jetstar:
The case was a challenge to Jetstar’s 2 wheelchair policy by Mrs Sheila King, who was refused a flight booking because 2 wheelchair using passengers were already booked on the flight. The Court agreed with Mrs King that in the provision of the service of air travel, Jetstar did indeed directly discriminate against her because of her disability. However, the Court found this discrimination not to be unlawful because Jetstar successfully invoked the unjustifiable hardship defence. It was concluded that as a low-cost airline based on a fast turnaround of its aircraft, Jetstar could only accommodate the special assistance needs required to board more than two wheelchair using passengers, and changing the turnaround times would be expensive and fundamentally change Jetstar’s low-cost business model. It is important to note the Court argued that it is not the wheelchair as such that is the reason for the “two wheelchair policy”; rather it is the additional assistance required by the wheelchair using passenger.
My thesis “reads back” the judgment from the Standpoint of a wheelchair using passenger. Jetstar’s operational procedures require people to relinquish their wheelchairs at check-in and force people into uncomfortable chairs provided by the airline that cannot be independently moved. Thus, Jetstar actively re-disabled Mrs King and created her need for assistance by
1 King v Jetstar (No 2) [2012] FCA 8 (‘King v Jetstar’).
2 Ibid [186].
3 Ibid [264].
4 inspired by I Bennett Capers, ‘Reading Back, Reading Black Ideas’ (2006) 35(1) Hofstra Law Review 9.
5 applying Standpoint Theory, as used in gender and race by Sandra Harding, The Science Question in Feminism (Cornell University Press, 1986); Patricia Yancey Martin, John Reynolds and Shelley Keith, ‘Gender Bias and Feminist Consciousness among Judges and Attorneys: A Standpoint Theory Analysis’ [2002] Signs 665; Allan Ardill, ‘Australian Sovereignty, Indigenous Standpoint Theory and Feminist Standpoint Theory: First Peoples’ Sovereignties Matter’ (2013) 22(2) Griffith Law Review 315; to disability Elizabeth Borland, ‘Standpoint Theory | Definition, Approaches, & Facts’, Britannica (online encyclopedia, 26 August 2025) https://www.britannica.com/topic/standpoint-theory.
taking her wheelchair away. This is something the Federal Court entirely ignored — the procedure was taken as neutral and remained entirely unexamined and unchallenged.
Thus, the Court’s failure to examine Jetstar’s operational procedures created the precedent that disability discrimination can continue unabated as long as the discrimination is “baked in” to a company’s business model. This has insurmountable barriers for complainants, which in turn hinders legislative development (of the concepts such as Reasonable Adjustment and Unjustifiable Hardship) in disability discrimination legislation in Australia.
In line with Australia’s obligations under the United Nations Convention on the Rights of People with Disability (‘CRPD’) the DDA currently contains a duty to make adjustments. Section 4 of the DDA defines reasonable adjustment as ‘an adjustment to be made a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.’
Reviews by the Disability Royal Commission (‘DRC’) and the Australian Human Rights Commission (‘AHRC’) have both recommend replacing all references to “reasonable adjustments” with “adjustments” (unless the adjustment imposes an Unjustifiable Hardship) and make the duty to make adjustments a standalone duty. This would then allow the focus of the deliberations to shift from reasonableness to unjustifiable hardship.
However, this requires a note of caution. By removing the reference to “reasonable” from the requirement for adjustments we run the risk of reducing unjustifiable hardship to a “bean counter” exercise — especially if we fail to provide an obligation to examine the entire context of a complaint from the perspective of people with disability.
It creates the danger of reducing the right of people with disability not to be discriminated to a conditional right and creates a dualistic approach — distinguishing between equality we can or want to afford and equality society does not want to provide or afford.
The DRC has understood this danger and recommended 2 additional factors should be considered in assessing unjustifiable hardship: how much the people with disability has been consulted, and what alternative options were available to remove or reduce unjustifiable hardship. I cannot stress enough the importance of both these points in addressing my concerns and conclusions of my thesis.
6 Convention on the Rights of Persons with Disabilities, 2007 opened for signature 13 December 2006, 2515 UNTD 3 (entered into force 3 May 2008), article 4 (‘CRPD’).
7 Royal Commission into Violence, Abuse, Neglect & Exploitation of People with Disability (DRC), Final Report: Executive Summary, Our Vision for an Inclusive Australia and Recommendations (Royal Commission into Violence, Abuse, Neglect & Exploitation of People with Disability, 2023) 204, Recommendations 4.25 and 4.26 (‘Final Report’).
8 (AHRC), Australian Human Rights Commission, ‘Free and Equal: A Reform Agenda for Federal Discrimination Laws (2021) | Australian Human Rights Commission’ https://humanrights.gov.au/our-work/rights-and-freedoms/publications/free-and-equal-reform-agenda-federal-discrimination-laws.
9 Royal Commission into Violence, Abuse, Neglect & Exploitation of People with Disability (DRC), Final Report: Volume 4: Realising the Human Rights of People with Disability (Royal Commission into Violence, Abuse, Neglect & Exploitation of People with Disability, 2023) 309 (‘Final Report’).
10 Stephen Bunbury, ‘Unconscious Bias and the Medical Model: How the Social Model May Hold the Key to Transformative Thinking about Disability Discrimination’ (2019) 19(1) International Journal of Discrimination and the Law 26.
11 Royal Commission into Violence, Abuse, Neglect & Exploitation of People with Disability (DRC) (n 9) 338, recommendation 4.32.
Unjustifiable hardship needs a clearer definition and/or guidelines in the DDA than currently provided in s 11 on how to determine the cost/benefit balance once being formally adjudicated in court of law. This should include the following:
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The DDA should contain an explicit statement that a purposive approach^12 should be applied when examining its provisions and concepts.
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Unjustifiable hardship should balance the benefits for people with disability and the wider community with potential costs and detriments to the respondent (after taking into account financial support available to the respondent). This would allow for “net benefit to the community in general” and, for example, increase general inclusivity and accessibility for parents with prams or elderly people with waking frames when wheelchair access is provided and facilitate a general move towards Universal Design.
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The concept of unjustifiable hardship needs to have boundaries. It can’t be that discrimination is acceptable when “baked in” to business model - as is a consequence of the decision in King v Jetstar. The DDA should contain an explicit statement that a business model cannot be invoked as a defence in unjustifiable hardship – at the very least applying to large commercial entities providing goods, services and facilities (see below, point 5). Australia should not be a country where businesses are created that are inherently discriminatory.
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Keeping in mind the adage of “nothing about us without us”, the DDA should contain a mandatory requirement for the judiciary to investigate discrimination complaints in a way that takes into account the standpoint of people with disability. Judges should be compelled to critically examine policies, procedures, frameworks etc and not presume them to be normative neutral. If necessary, consultations with relevant people with disability and their organisations to understand the context of complaints should be mandatory before a final judgment is made (possibly via invitations to amicus briefs).
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Similar to requirements under the Privacy Act 1988 (Cth), commercial entities providing goods, services and facilities that have an annual turnover of more than AUS$3 million^13 should be required to produce a Disability Action Plan and submit it to the AHRC. Action Plans must come with review of barriers and concrete plans – including time frames and KPIs – on how the entities’ progress in dismantling those barriers. Action Plans should also list the consultation undertaken with people with disability^14 and come with mandatory reporting requirements on compliance and
^12 Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, 1990) (‘Thornton’); Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14(3) International Journal of Constitutional Law 712; Alice Taylor, ‘Disability Discrimination, the Duty to Make Adjustments and the Problem of Persistent Misreading’ (2019) 45(2) Monash University Law Review 461 (‘Persistent Misreading’); Alice Taylor, Interpreting Discrimination Law Creatively - Statutory Discrimination Law in the UK, Canada and Australia (Hart Publishing, Paperback, 2025). ^13 Privacy Act 1988 (Cth) ss 6C 6D, 6DA.
^14 While this may seem like a burden, it is actually the opposite. Duty holders often have little or no understanding of adjustments that would be suitable or the impact of their actions on people with disability. Consultation would be more beneficial for all and not leave duty holders guessing.
achievements of goals.^15 If no progress is made in implementing the goals outlined in the Action Plan, unjustifiable hardship should be unavailable be invoked as a valid defence. Respondents with an annual turnover of less than 3 million are encouraged, but not obliged, to produce Action Plans. Progress made under such voluntary Action Plans is taken into account during deliberations.
Fundamentally, after 30 years, it is time the DDA is strengthened to serve its purpose, envisaged at its inception. Society has greatly changed. people with disability can no longer be relegated to the margins of society – it is time our lived experiences are heard and acted upon. The legislation must provide clear guidance to the judiciary to adjudicate cases in a purposive manner^16 as intended by the DDA.
Thank you for the opportunity to make this submission.
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Heike Fabig
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END
^15 Tasmania recently introduced new legislative amendments that clearly state what must be included in a disability access plan. The Disability Rights, Inclusion and Safeguarding Act 2024 (TAS). Its s 12 formalises the requirements relating to consultation, planning, and reporting of progress in delivering actions through a disability inclusion action plan. ^16 Taylor, ‘Persistent Misreading’ (n 12); Taylor, Interpreting Discrimination Law Creatively - Statutory Discrimination Law in the UK, Canada and Australia (n 12).