NDIA Accountability Project

Disability Discrimination Act Review Submission October 2025

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Disability Discrimination Act Review

Submission October 2025

scia.org.au

About SCIA

SCIA is a for-purpose organisation working for people living with spinal cord injury (SCI) and other neurological and physical disabilities. SCIA was founded by people with SCI over fifty years ago; people with disability make up over 35% of our staff, 25% have an immediate family member with disability and the majority of our Board live with SCI.

SCIA is national and member-focussed, serving over 3,000 members made up of people living with disability, their family, carers, researchers, and other professionals in the sector. SCIA’s Systemic and Representative Advocacy Team work closely with our members to understand their aspirations and concerns and to promote full inclusion for our members living with disability.

A robust yet practical Disability Discrimination Act (DDA) is the foundation for the human rights of people with disability in Australia. We welcome the opportunity to contribute to this review and appreciate the thorough framework provided in the Discussion paper.

Introductory Comments

SCIA welcomes the opportunity to comment on the DDA. Our response focusses on the questions where we believe our expertise and lived experience can add value to the process.

SCIA welcomes the 15 recommendations by the Disability Royal Commission highlighted in the Issues Paper. The DDA in its current format is reactive rather than proactive placing the onus on people with disability to complain when duty holders ignore their responsibilities. This means that duty holders are not incentivised to comply with the DDA as they are only held accountable when someone complains. SCIA is particularly pleased to see the proposed reform to develop a positive duty to eliminate discrimination.

We have responded to the relevant question in the Discussion paper below.

Part 1 — Updating understandings of disability and disability discrimination

Definition of disability

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

SCIA understands that clear language and definition is critical to enforcement of legal rights. Therefore, first and foremost we believe a tight legal definition must be a priority.

Within this framework however we agree that, where possible, deficit-based language should be removed.

Language is increasingly recognised as being important for the impact it has on a person’s wellbeing. SCIA members report that deficit-based language can be dehumanising.

Because language and wellbeing are so intrinsically connected, and because perception can slowly change with the use of language, we support where possible, within the requisite legal framework the use of language that recognises difference and impairments above deficit based language.

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

  2. Could any other changes be made to the Disability Discrimination Act to recognise and provide protection for people with disability who have intersecting identities, or addressing compounding discrimination?

An understanding of how personal attributes intersect to form identity has grown since the DDA was written in 1992 and recognition of this in its updated form is essential for people to feel respected.

Spinal and neurological conditions are acquired disabilities and can happen to anyone at any time. A person’s ability to adapt and adjust depends on multiple factors however the presence of other disabilities or attributes for which they may have already been discriminated against adds to the adjustment process.

Amending the definition of direct discrimination

  1. What test should be used to ensure that the definition of direct discrimination is easy to understand and implement for both duty holders and people with disability, and why?
  2. How should the burden of proof be addressed in the Disability Discrimination Act?

Whilst, SCIA does not have a view on what model would be more suitable, we do strongly support both recommendations by the Royal Commission, that the comparator be removed and replaced with a “detriment test” and that the burden of proof be a requirement, not of the individual, but of the respondent.

SCIA members report that when they attempt to raise discriminatory behaviour the process quickly becomes overwhelming with the person being adversely impacted because of the event and then again because of the overwhelming process of proving discrimination.

The quantum impact of this system is that change is slow or non-existent.

For example, nearly every wheelchair user has a story of discrimination during air travel. However, because of the difficulty of proving discrimination most do not lodge a complaint with the Human Rights Commission. The result being that for decades there has been no significant change, and many wheelchair users simply elect to forgo personal or work air travel.

Amending the definition of indirect discrimination

  1. 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?

  2. Should the reasonableness element in the definition of indirect discrimination be:

    • removed
    • retained and supplemented with a list of factors to consider
    • replaced by a legitimate and proportionate test
    • other Please expand on your response.

  3. 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 Disability Royal Commission recommendation to remove the reasonableness element from the definition of indirect discrimination is a minor amendment with a significant impact and one which SCIA supports.

The concept of unjustifiable hardship is easier to define and quantify. It may be done in financial or staffing terms. This fits nicely with the ‘legitimate and proportionate’ recommendation outlined in the Disability Royal Commission recommendation.

A small business for example may not have the staffing or budget capacity to make an adjustment, further by applying the ‘legitimate and proportionate’ assessment alternative and compromise positions may be put forward.

The concept of reasonableness, by comparison is difficult to define and places another barrier on the person with disability who is attempting to raise a concern.

SCIA therefore affirms the recommendation to remove the reasonableness component and replace with the ‘legitimate and proportionate’ test as this has several successful precedents in Australia and overseas.

SCIA is generally supportive of removing complexity from the Act. Complex language that is difficult to understand presents a barrier for people with disability. Therefore, as recommended by the Human Rights Commission, we support the removal of the ‘does not or would not comply, or is not able or would not be able to comply’. As the discussion paper highlights this clause has been omitted with no ill effects in four States.

Interpreting the Disability Discrimination Act in line with the Convention on the Rights of Persons with Disabilities

  1. Should the Disabilities Convention be included in the objects provision of the Disability Discrimination Act?

  2. 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?

All States and Territories have signed up to the CRPD and it has been successfully used as a baseline in many other circumstances. Consequently, it is our view that having reference to the CRPD can only strengthen the Disability Discrimination Act.

Part 2 — Positive duty to eliminate discrimination

Positive duty for duty holders to eliminate discrimination

  1. If there was a positive duty in the Disability Discrimination Act, who should it apply to?

  2. 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?

  3. What costs, benefits and other impacts would duty holders experience in meeting a positive duty under the Disability Discrimination Act? If you are an existing duty holder under the Disability Discrimination Act, please specify how you think meeting a positive duty would impact you.

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

SCIA strongly supports the recommendation to incorporate a positive duty in the DDA for all duty holders, not just in an employment capacity.

Because of the recommendation that the adjustments are to be proportionate to the size and capacity of a business this will not place undue burden on smaller businesses but will have a major impact on people with disability.

As noted in the discussion paper, the workplace health and safety laws already provide protection in the workplace and the gap primarily exists for people with disability in other areas of life.

Too frequently duty holders have a reactive attitude. It is simpler and often cheaper to only make change if it is required post complaint, and often such change is limited. Change, for example physical access, can require a financial investment the long-term benefits of which would eliminate significant barriers for people with physical (and often other) disabilities. Real life examples include many large and profitable businesses such as airlines, shopping centres, educational institutions, real estate agencies, clubs and sporting venues and others.

A positive duty to actively prevent disability discrimination from happening in the first place should be an important principal, similar to sex discrimination requirements, in any organisation.

Finally, rather than focussing on exemptions for smaller businesses a mechanism for an implementation timeframe should be considered to work towards the goal of universal access.

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

Strengthening the duty to provide adjustments

  1. Would the creation of a stand-alone duty to provide adjustments better assist people with disability and duty holders to understand their rights and obligations?

  2. Should the scope of the duty to provide adjustments apply only to the existing areas of public life covered by the Disability Discrimination Act, or extend to other contexts?

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

SCIA agrees that there should be a standalone duty to provide adjustments and the need to remove “reasonable” from the language. It’s important to highlight that with regard to making adjustments for employment, there is financial assistance available to mitigate the costs through the federal government Job Access program. Similar adjustment can also be made in educational facilities. The promotion of such programs available to support with the employment or education of people with disability, helps to remove perceived barriers and strengthen arguments for a more robust legislation.

Definition of and considerations for unjustifiable hardship

  1. 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

In response to this consultation question, SCIA prefers Option A — DRC recommendation. In this response and in questions, 20, 21 and 22 below, we favour the option of consulting with the person with disability. People with disability know best their strengths and limitations. In a community underpinned by a social model of disability conversations and consultation is built into the recruitment process.

This also places a responsibility on the person with disabilities to fully consider how they would perform the role.

Consultation with the person with a disability is also vital for looking at what alternatives might be available to reduce the potential hardship factor which essentially comes down to cost. There might well be a suitable pathway to compromise that addresses access, as an example, where an agreement can be reached that suits both parties.

Further to this, there is a lot of misunderstanding and assumptions made with regard to the capabilities or employment of people with disabilities where communication about what adjustments are needed in the workplace might find a pathway to overcome the hardship factor.

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

  1. What are your views on amending the Disability Discrimination Act to consider the nature and extent of any adjustments made and encourage consultation between prospective or current employers and prospective or current employees before making employment decisions?

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

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

It is people with disability who best understand their strengths, capacity and limitations. They will know how to adjust and adapt to a role through the use of either assistive technology or personal “workarounds.” Very few people will elect to accept a role when they are unable to fulfil the requirements of the role. Therefore, SCIA supports incorporation of consultation into the Act.

Part 4 — Improving access to justice

Offensive behaviour and vilification protections

  1. How could the Disability Discrimination Act be amended to protect people with disability from offensive behaviour and/or harassment?
  1. If the Disability Discrimination Act were to prohibit offensive behaviour and/or harassment, how should these terms be defined?
  2. Should there be exemptions for any behaviour, similar to the Racial Discrimination Act?

Vilification

  1. 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?

SCIA agrees with the DRC recommendation for there to be a new provision making it unlawful to offend, insult, humiliate or intimidate another person or group because of the disability of the other person or group. These are behaviours that shouldn’t be acceptable in our society. Given that similar provisions are available under the Racial Discrimination Act, it’s important to strengthen the DDA along similar lines.

We only have to look at the ongoing abuse and neglect of people with disability, some of it reported through the DRC hearings, to understand that we need more robust legislation to address this.

Part 5 — Exemptions

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

  2. Should the Australian Human Rights Commission be given the power to grant special measures certificates?

  3. Should a definition for special measures be added to the Disability Discrimination Act?

  4. Should a definition for temporary exemptions be added to the Disability Discrimination Act?

  5. Would you recommend any changes to the legislative process of granting temporary exemptions?

While special measures exemptions are in place to protect people with disability, temporary exemptions show a lack of commitment to fairly standard accessibility provisions. Specific and limited guidelines may be beneficial to ensure that exemptions are used in the most minimal manner.

Part 6 — Modernising the Disability Discrimination Act

Assistance animals

  1. How could the protections for assistance animals be clarified for both people with disability and duty holders, including in relation to evidence of training, evidence or standards of hygiene and behaviour that are appropriate for a public place?

  2. Would legislative amendments or guidance materials be helpful to balance flexibility and certainty, or a mixture of both?

  1. Should specific training organisations be prescribed under the Disability Discrimination Regulations?

Whilst SCIA does not have a strong view on the mechanism for training and accreditation requirements we do believe that documented training requirements are essential to give duty holders confidence that the assistance animal meets the requirements of an assistance animal under the DDA.

We believe that unless the process is simple for duty holder to check this, there will continue to be duty holders who do not uphold their obligations when it comes to assistance animals.

Disability action plans

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

  2. Should the Australian Human Rights Commission be able to reject action plans that fail to meet these requirements?

  3. Should there be a set period of time for which an action plan is valid?

  4. Are there any other changes to the action plan process that you would recommend?

As a disabled people’s organisation, we often feel that a Disability Action Plan is simply a promotional and tokenistic mechanism. We support the Human Rights Commission creating guidelines and ensuring that action plans meet the requirements as well as a timeframe for the life of a Disability Action Plan, thus requiring reflection and commitment.

Additionally, we are routinely approached to offer an advisory role in a Disability Action Plan working group. Something that ordinarily we are unable to commit to as a not for profit. We encourage our members to become involved where they have capacity however believe that “lived experience” contributions should be valued with financial renumeration to recognise the support offered to an organisation.

Under the New South Wales Disability Inclusion Act 2014, all public authorities (government departments and local councils) must prepare and write a Disability Inclusion Action Plan detailing steps to remove barriers and support inclusion of people with disability. People with disability must be consulted on the development of DIAPs and each authority must provide yearly updates through their annual reports on implementation steps undertaken to ensure access and inclusion are being actively pursued. DIAPs are mandatory and are to be renewed every four years.

We would like to see a more targeted approach applied across all government services at a state and federal level that looked to address barriers in mainstream services with set time frames similar to New South Wales and with robust policies leading to positive outcomes.

We would also like to see lived experience engagement, not only in the development phase of a DIAP but throughout the implementation phase to assist with the implementation of recommendations. Currently there is no requirement to have people with disability engaged in the implementation of a DIAP and this makes accountability limited.

Disability Standards

  1. How could compliance with and enforcement of the Disability Standards be improved?

  2. 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?

  3. 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?

Anything that reduces the burden on the individual to make a complaint is important. For example, many buildings are non-compliant under the premises standards, and it is currently a very intimidating and time-consuming process for individuals to raise individual breaches. Therefore, we support an increase in the Human Rights Commission’s powers to enforce breaches of the Standards.

Standards are the essential mechanism under which access is enforced. SCIA however believes that lived experience feedback and codesign should be enshrined in the legislation. In many cases, Standards fail to meet the needs of all and codesign can ensure facilities are consistently of a high standard.

Part 7 — Further options for reform

  1. 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?

  2. 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?

  3. How can we ensure the Disability Discrimination Act remains fit for purpose into the future?

  4. Are there any other issues with the Disability Discrimination Act that should be considered as part of this review

Throughout our response, SCIA has attempted to show support for amendments that create a simple and understandable process, whilst maintaining tight legal definitions that are enforceable.

Once the new DDA is complete we recommend recorded information sessions for the disability community to reaffirm their rights under the Act.