Review of the Disability Discrimination Act | External submission

No machine-readable text was extracted from this page.

ACKNOWLEDGEMENT

Western Sydney Community Forum acknowledges First Nations peoples as the sovereign Traditional Owners and Custodians of the unceded lands and waters on which we work and live.

We pay respect to Elders past and present.

We respectfully recognise all Aboriginal and Torres Strait Islander peoples, their cultures and their heritage.

We acknowledge past and present injustices and commit to walking alongside First Nations peoples.

24 October 2025

Attorney-General’s Department
DDAReview@ag.gov.au

Dear Colleagues,

Please find attached Western Sydney Community Forum’s submission to the Review of the Disability Discrimination Act.

Thank you for providing the opportunity to make a submission and we look forward to further information on progressing this important work.

For further information, please do not hesitate to contact redacted, Director Policy and Programs, on redacted or redacted.

Yours sincerely,

redacted

Chief Executive Officer

ABOUT US

Western Sydney is home to around 2.6 million people. One in ten Australians live in Western Sydney. Nationally, it is one of the fastest growing regions, with an estimated population of 3.2 million by 2036.

The region encompasses the 13 local government areas of Blacktown, Blue Mountains, Camden, Campbelltown, Canterbury Bankstown, Cumberland, Fairfield, Hawkesbury, Liverpool, Parramatta, Penrith, The Hills and Wollondilly.

It is the Australian urban area with the highest proportion of First Nations people. Almost half the population speaks a language other than English at home. There are concentrated areas where people experience disproportionate levels of systemic socio-economic barriers to access, when compared to the metropolitan.

Western Sydney Community Forum is the regional peak social development council. It has led and shaped social policy and service delivery in the region for almost 50 years, representing a vast population and a community services industry that annually invests billions in the Western Sydney community and economy. We have over 4,000 members, subscribers and service users and a reach of about 400,000 each year.

BACKGROUND

The Disability Discrimination Act 1992 (Cth) intends to protect people against discrimination and harassment based on disability (Australian Human Rights Commission, 2014).

In 2019, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission; 2022) was established in response to community concern about the neglect, abuse, and exploitation of people with disability.

As part of the government response to the Disability Royal Commission, the Attorney-General’s Department (2025) is conducting a review of the Disability Discrimination Act. This review will consider options to implement the 15 recommendations from the Disability Royal Commission which related to the Disability Discrimination Act, as well as further changes to improve the experiences of people with disability.

Protecting the rights and wellbeing of people with disability is an important consideration for communities and service providers in Western Sydney. Compared to Greater Sydney, a higher proportion of people in Western Sydney report needing assistance with core activities (Profile Id, 2021b).

Although regional data for disability discrimination complaints is not publicly available, between 2024-2025, South Western Sydney and Western Sydney were in the top three regions with the highest number of reports to the Ageing and Disability Commission relating to adults with disability (Ageing and Disability Commission, 2025). This highlights the increased vulnerability of people living with disability in Western Sydney to neglect, abuse, and exploitation, which is reflected in feedback from our member organisations.

Western Sydney Community welcomes the opportunity to contribute to the review’s consultation process. Our submission draws on the input of various individuals and organisations working in the region’s community services industry. Western Sydney Community Forum thanks all stakeholders consulted across Western Sydney for their contributions.

SUMMARY OF RECOMMENDATIONS

Amend the Disability Discrimination Act to expressly include claims of discrimination on the basis of intersecting or combined attributes.
Replace the comparator test with a detriment test provision.
Amend the definition of services under the Disability Discrimination Act to include all acts and services provided by police officers in the course of performing policing duties and powers.
Introduce a positive duty which requires duty holders to take reasonable and proportionate measures to eliminate disability discrimination.

COMMUNITY FEEDBACK

“Reduce the need for individuals to ‘choose’ one ground of discrimination when in reality it is compounded.”

RECOMMENDATION ONE

AMEND THE DISABILITY DISCRIMINATION ACT TO EXPRESSLY INCLUDE CLAIMS OF DISCRIMINATION ON THE BASIS OF INTERSECTING OR COMBINED ATTRIBUTES.

To ensure that the Disability Discrimination Act upholds the rights of people with disability and does not further contribute to the marginalisation of people with multiple intersecting identities, it is imperative that issues relating to intersectionality are addressed.

People with disability are a heterogeneous population, who may face discrimination on the grounds of multiple and overlapping attributes. Currently, these experiences must be isolated in order to prove each ground of discrimination under different statutes (Blackham & Temple, 2020). As a result, there is an increased burden of proof on the claimant and compounding effects of intersectional discrimination are not fully recognised. This concern is particularly relevant in Western Sydney, which is home to a highly diverse population of people who may face complex and layered instances of discrimination.

For instance, Western Sydney has one of the largest populations of Aboriginal and Torres Strait Islanders living in an urban region. In 2018, almost one-quarter of Aboriginal and Torres Strait Islander peoples living in Australia had disability (Australian Bureau of Statistics, 2021).

The intersection between Aboriginality and disability is still under-researched (Daniels-Mayes, 2023). Separating discrimination that occurs at the intersection of these marginalised populations does not account for the lived realities of Aboriginal and Torres Strait Islanders with disability.

Additionally, there is a high proportion of culturally and linguistically diverse households, with nearly half of the population reporting that they speak a language other than English at home (Profile Id, 2021a). Western Sydney is also experiencing rapid demographic shifts towards an older population, with projections suggesting that one in four residents of Western Sydney will be aged 65 years or older by 2050 (Siette et al., 2024). Those living in Western Sydney are subsequently at higher risk of experiencing discrimination on the basis of multiple protected attributes, which may include race, religion, sex, age, sexual orientation, and gender identity.

Based on feedback from stakeholders in Western Sydney, it is recommended that the Disability Discrimination Act is amended to expressly allow claims to be brought for multiple or combined protected attributes.

COMMUNITY FEEDBACK

“remov[e] legal barriers such as the comparator test, which makes it difficult to prove discrimination when multiple factors are at play”.

RECOMMENDATION TWO

REPLACE THE COMPARATOR TEST WITH A DETRIMENT TEST PROVISION.

To further improve protections for people with intersecting marginalised identities, it is recommended that the comparator test is removed from the requirements to establish direct discrimination. Instead, the test should be replaced with an alternative that focuses on the treatment faced by the person with disability, such as the detriment test.

The comparator test has been criticised for creating unnecessary evidentiary and conceptual barriers, particularly where there is no suitable comparator or where multiple forms of discrimination interact (Disability Royal Commission, 2023b; Legal Aid NSW, 2023). For instance, using a comparator approach would not be suitable in situations where an individual is discriminated against for behaviours which are caused by, or form part of, their disability (Queensland Human Rights Commission, 2022).

It has also been suggested that the complexities associated with using a comparator test contribute to confusion, uncertainty and inconsistency during the legal process (Department of the Prime Minister and Cabinet, 2012).

Supporting this, stakeholders contributing to this submission have raised concerns that the comparator test creates a legal barrier, making the process of persuing a disability discrimination complaint more arduous where there is more than one overlapping factor. In some jurisdictions, it has been determined that a comparator test should not be relied on where there is discrimination from intersectional discrimination (Withler v Canada, 2011, as cited in Queensland Human Rights Commission, 2022).

In contrast, introducing a detriment test would simplify the legal assessment of discrimination by focusing on whether a person with disability has been subjected to less favourable treatment or disadvantage because of their disability (Queensland Human Rights Commission, 2022). This is significant because it does not require comparison with a real or constructed third party to establish discrimination. In addition to simplifying the process of establishing direct discrimination and focusing on what the person with disability has experienced, this approach facilitates the consideration of multiple, compounding aspects of discrimination.

COMMUNITY FEEDBACK

“Because policing is excluded from the Disability Discrimination Act, these individuals have no clear legal pathway to challenge discriminatory treatment or seek accountability.”

RECOMMENDATION THREE

AMEND THE DEFINITION OF SERVICES UNDER THE DISABILITY DISCRIMINATION ACT TO INCLUDE ALL ACTS AND SERVICES PROVIDED BY POLICE OFFICERS IN THE COURSE OF PERFORMING POLICING DUTIES AND POWERS.

As noted in the Disability Royal Commission (2023a), previous interpretations of ‘services’ within a policing context have only included victims of crime, witnesses, and members of the public. The Review’s discussion paper outlines that there is currently no legislative test to decide how a service is defined (Attorney-General’s Department, 2025). Some court decisions indicate that police only provide a service during the initial investigation. In contrast, investigation processes and decisions (including actions taken against alleged offenders or decisions on bail applications) are not considered to be the provision of a service.

Subsequently, people with disability who may be suspects or perpetrators of a crime are not clearly protected against discrimination under the Disability Discrimination Act, and have no direct legal pathway to seeking justice after being subjected to discriminatory treatment in this context.

It is imperative that the Disability Discrimination Act provides protections that encompass all people with disability, including those who may be suspected of, or charged with, committing a crime.

Data shows that people with disability are greatly over-represented in the criminal justice system. For instance, the NSW Bureau of Crime Statistics and Research (2025) found that over a quarter of adult offenders and nearly 50% of adults with custodial contact in NSW between 2009 and 2018 were people with disability.

This mirrors the findings of an adult prisoner entrant survey capturing information from all other Australian states, which indicated that 29% of prison entrants report having a disability or chronic condition (Marshall-Tate et al., 2020, as cited in the Disability Royal Commission, 2023a).

Feedback from member organisations and stakeholders highlights the impact of the current ambiguity around policing and disability discrimination on those living with disability in Western Sydney. In particular, there were concerns that people with disability who identify as Aboriginal and/or Torres Strait Islander and people from culturally and linguistically diverse backgrounds are at greater risk of over-policing, over-surveillance, stereotyping, and not being believed by police.

This is supported by the findings of the Disability Royal Commission (2023a), which noted that Aboriginal and Torres Strait Islanders with cognitive disability are more likely to be investigated, charged and remanded in custody than those without cognitive disability.

During consultation, the inconsistent coverage of interactions between police and those suspected of committing an offense in the Disability Discrimination Act was further identified as a significant barrier to justice, and was suggested to contribute to both a lack of trust in the criminal justice system and instances of trauma arising from interactions with police.

To ensure that people with disability are afforded equal protection under the law, it is therefore critical to amend the definition of services under the Disability Discrimination Act to include all acts and services provided by police officers in the course of performing policing duties and exercising powers. This would provide greater protection and transparency, as well as uphold human rights and dignity of those living with disability in their interactions with the criminal justice system.

COMMUNITY FEEDBACK

“The process is legalistic, intimidating, and slow, discouraging people from pursuing complaints.”

RECOMMENDATION FOUR

INTRODUCE A POSITIVE DUTY WHICH REQUIRES DUTY HOLDERS TO TAKE REASONABLE AND PROPORTIONATE MEASURES TO ELIMINATE DISABILITY DISCRIMINATION.

Currently, when a duty holder is not following the Disability Standards, it is the individual’s responsibility to make a discrimination complaint with the Australian Human Rights Commission. As well as creating an additional burden on the individual to lodge a complaint or liaise with someone to make a complaint on behalf of another individual, this process means that any action taken is retrospective.

As a result, the systemic causes underlying instances of disability discrimination may go unaddressed, despite there being opportunities to prevent the discrimination occurring in the first place.

To promote the ability of the Disability Discrimination Act to uphold the rights of people with disability and reduce the burden of making discrimination complaints on individuals, it is therefore recommended that a positive duty is introduced in the Act. This positive duty should require all duty holders, including organisations and entities in the public and private sector, to take reasonable and proportionate measures to eliminate disability discrimination, prevent harassment and promote equity.

Supporting this, arguments for the implementation of a positive duty place emphasis on its role in addressing structural factors contributing to the occurrence of discrimination. Rather than relying on individuals to challenge discrimination through complaints after it occurs, a positive duty would make organisations responsible for their practices, policies, and cultures (Shi & Zhong, 2020). Turning the accountability onto organisations to proactively prevent discrimination therefore encourages cultural and systemic changes within workplaces, service systems, and public institutions.

In 2022, a positive duty was introduced into the Sex Discrimination Act 1984 (Cth). The positive duty requires organisations and businesses to take proactive steps, or ‘reasonable and proportionate measures,’ to eliminate discrimination on the ground of sex in a work context (Australian Human Rights Commission, 2023). It includes sexual and sex-based harassment, conduct that creates a hostile workplace environment on the ground of sex, and other related unlawful behaviours.

This provides a model for the implementation and enforcement of a positive duty in relation to disability discrimination. For example, by giving the Australian Human Rights Commission additional powers to conduct enquiries, investigate and enforce positive duty obligations with businesses and organisations, as in the Sex Discrimination Act.

Implementing this reform would promote accountability and embed disability inclusion as a core organisational responsibility, leading to systemic change. Furthermore, it would reduce the burden on already marginalised members of the community to be responsible for responding to harms committed against them.

This is critical in areas like Western Sydney, where our stakeholders report that the complaints process is not always accessible to members of the community due to the time, effort, and resilience required, Anecdotal evidence also suggests that people may be afraid to persue discrimination complaints due to fears that there will be negative repercussions.

In addition to this, the complaints process may not be culturally safe or multilingual in ways which support Aboriginal and/or Torres Strait Islander peoples and individuals from culturally and linguistically diverse backgrounds.

Introducing a positive duty to prevent disability discrimination before it occurs would therefore be a powerful tool to ensure that the human rights of people with disability belonging to these communities are not violated.

Our members and stakeholders further noted that the introduction of a positive duty would be an important measure to help ensure that the Disability Discrimination Act remains fit-for-purpose into the future.

COMMUNITY FEEDBACK

“People worry about losing their job, housing, or access to services if they speak up.”

REFERENCES

Ageing and Disability Commission. (2025). Ageing and Disability Commission data 2024-2025.

Attorney-General’s Department. (2025). Disability Discrimination Act 1992 Review. Australian Government.

Australian Bureau of Statistics. (2021). Aboriginal and Torres Strait Islander people with disability.

Australian Human Rights Commission. (2014). Disability discrimination.

Australian Human Rights Commission. (2023). What is the positive duty?

Blackham, A., & Temple, J. (2020). Intersectional discrimination in Australia: An empirical critique of the legal framework. University of New South Wales Law Journal, 43(3), 773-800.

Daniels-Mayes, S. (2023). Researching Indigenous people living with a disability: The urgent need for an intersectional and decolonising approach (BlakAbility). First Nations Health and Wellbeing — The Lowitja Journal, 1.

Department of the Prime Minister and Cabinet. (2012). Consolidation of Commonwealth anti-discrimination laws: Regulation Impact Statement. Australian Government.

Legal Aid NSW. (2023, October). Submission to the NSW Law Reform Commission review of the Anti-Discrimination Act 1977 (NSW).

NSW Bureau of Crime Statistics and Research. (2025, June). Offending contact for people with disability. NSW Government.

NSW Law Reform Commission. (2025). Review of the Anti-Discrimination Act 1977 (NSW): Unlawful conduct (Consultation Paper 24).

Profile ID. (2021a). Western Sydney (LGA): Language used at home.

Profile ID. (2021b). Western Sydney (LGA): Need for assistance.

Queensland Human Rights Commission. (2021). Review of Queensland’s Anti-Discrimination Act: Discussion paper.

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2022). About the Disability Royal Commission.

redacted: s2

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2023a). Final report: Criminal justice and people with disability. Volume 8. Commonwealth of Australia.

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2023b). Final report: Realising the human rights of people with disability. Volume 4. Commonwealth of Australia.

Shi, E., & Zhong, F. (2020). Addressing sexual harassment law’s inadequacies in altering behaviour and preventing harm: A structural approach. University of New South Wales Law Journal, 43(1), 155-184.

Siette, J., Dadich, A., Harris, C. et al. (2024). Ageing Well in Western Sydney and Beyond. Western Sydney University.

No machine-readable text was extracted from this page.