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QIDAN Submission to the Disability Discrimination Act 1992 Review

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QIDAN Submission to the
Disability Discrimination Act 1992
Review

November 2025

Working together to achieve positive change for people with disability

About QIDAN ………………………………………………………………………………………………………………………………. 3

Introduction ………………………………………………………………………………………………………………………………. 4

Recommendations ………………………………………………………………………………………………………………………. 7

Celebrate people with disability and protect them from discrimination ……………………….. 10

Positive duty: a crucial step towards equality …………………………………………………………………….. 14

Inclusion benefits everyone and disadvantages no one ……………………………………………………. 19

Extend protections to people with disability experiencing harassment and vilification 27

No more excuses for discriminating – make exemptions clear and minimum ……………….. 28

Make the DDA effective and fit for purpose ……………………………………………………………………….. 30

Further options for reform ………………………………………………………………………………………………….. 33

Conclusion ………………………………………………………………………………………………………………………………. 35

QIDAN Submission to the Disability Discrimination Act 1992 Review 2

About QIDAN

The Queensland Independent Disability Advocacy Network (QIDAN) is a group of organisations that provide individual advocacy assistance to Queenslanders with disability.

These organisations are funded under the Queensland Disability Advocacy Program (QDAP). The member organisations include Aged and Disability Advocacy; AMPARO Advocacy Inc; Capricorn Citizen Advocacy; Mackay Advocacy Inc; People with Disability Australia; Queensland Advocacy for Inclusion (QAI); Rights in Action; Speaking Up For You; TASC; and Yarn2Action run by Aged and Disability Advocacy.

QIDAN members meet regularly to discuss the pressing issues that are impacting people with disability in our communities, and disability discrimination is a common issue advocates assist people with. The following submission is informed by our extensive experience working with Queenslanders with disability who have experienced disability discrimination in areas of public life such as accessing services and public spaces, education and accommodation.

A note on language

Language is a powerful tool for building inclusion. We use person-first language by using the term ‘people with disability’ but recognise that many people with disability prefer identity first language (i.e. a disabled person).

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Introduction

QIDAN welcomes the Australian Government’s and the Attorney-General’s commitment to upholding the rights of people with disability and ensuring anti-discrimination laws work for people with disability. QIDAN also welcomes the focus of the Disability Discrimination Act 1992 Review (the DDA Review) on the implementation of the Disability Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the DRC) final report and its 15 recommendations relevant to the Disability Discrimination Act 1992 (the DDA). QIDAN contributed to the DRC in several ways, providing advocacy to people with disability involved in the DRC, assisting people with disability to access and share their experiences, preparing submissions and attending hearings. QIDAN remained cognisant of both the pain and harm caused to people with disability reliving traumatic experiences, and the courage and resilience of Queenslanders. We are pleased to see that people’s stories have resulted in the DDA Review, and that steps are being taken towards a future free from discrimination.

The key role of QIDAN’s advocates is to uphold the rights, interests and wellbeing of people with disability, addressing discrimination and barriers. In the 2024-25 financial year, our advocates provided 2,045 advocacy matters involving government systems (not including the NDIS) to 1,118 people with disability. We support people who are engaged with discriminatory systems such as education, housing, employment and health, including assistance to lodge a complaint to the Queensland Human Rights Commission (QHRC) or to the Australian Human Rights Commission (AHRC). In our experience, people with disability choose to focus on resolving the issue caused by the discriminatory act or omission (e.g. Student exclusion or suspension) and not initiate a complaint due to complex and lengthy processes.

Following are the top systems QIDAN’s advocates assist people to navigate:

  • Housing and tenancy
  • Commonwealth entitlements and payments
  • Education

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  • Child Protection
  • Health and mental health

During the same period, we helped people with 43 advocacy matters which included discrimination complaint as the primary issue. Our data further reveals that for every person we assisted with a discrimination complaint, during the same period another person was turned away. The most common reason for this is due to disability organisations not having the organisational capacity to assist new clients.

Further data from the 2024 to 2025 financial year reveals:

  • 23% of advocacy matters were provided to people with psychosocial disability as their primary disability
  • 18% of advocacy matters were provided to people with physical disability as their primary disability
  • 44.6% of advocacy matters involved a person who was not on the NDIS
  • 17% of advocacy matters were delivered to Aboriginal and/ or Torres Strait Islander people
  • 24% of advocacy matters were delivered to people from a culturally and linguistically diverse background
  • At least 17% of advocacy matters were provided to a person experiencing domestic and family violence
  • At least 26% of advocacy matters were provided to a person who was experiencing, or was at risk of experiencing, homelessness.

In addition to QIDAN’s data, the QHRC reports that impairment or disability discrimination continues to be the most commonly accepted complaint. In the 2024-25 financial year, 63% of complaints (or 305) received by the QHRC were about disability discrimination.¹ Of these, 99 were work related, 91 were about goods and services, 61 were about state laws and programs, 44 were education related and 30 were about accommodation.

¹ Queensland Human Rights Commission, Annual Report 2024-25, https://www.qhrc.qld.gov.au/__data/assets/pdf_file/0006/56499/Queensland-Human-Rights-Commission-Annual-Report-2024-25.pdf.

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The Queensland Anti-Discrimination Act 1991 (the ADA) was reviewed by the QHRC in 2020-21, which resulted in the Building Belonging report.² The proposed changes in the report have been extensively consulted on and are widely supported by the community. Many members of QIDAN have been involved in that consultation process. The Building Belonging report resulted in proposed legislative changes to the ADA that were due to commence on 1 July 2025, but to our disappointment they have been postponed until further notice.³ The Building Belonging report proposed many changes that are relevant to the DDA Review, which we will address in this submission.

Our response to the DDA Review is informed by QIDAN’s experience working with people with disability who seek our assistance to deal with discriminatory systems or who seek assistance to deal with discrimination complaints. We hope that our insights can provide unique considerations on how we can work toward a more inclusive Australia, free from discrimination and hate.

² Queensland Human Rights Commission, Building Belonging: Review of Queensland’s Anti-Discrimination Act 1991, https://www.qhrc.qld.gov.au/about-us/reviews/ada. ³ https://statements.qld.gov.au/statements/102168, https://qai.org.au/hate-wont-wait-dont-delay-anti-discrimination-reforms/.

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Recommendations

  1. Include the Convention on the Rights of Persons with Disabilities in the objects of the DDA. This should expressly require the DDA is interpreted in line with international treaties.
  2. The definition of disability must use respectful and affirming language and reflect the rights of people with disability, and it must use language inclusive of people with neurodiversity. We recommend the removal of references to outdated and inappropriate language such as ‘malfunction’, ‘malformation’ and ‘disfigurement’ (in paragraphs (e) and (f) of the definition).
  3. Remove the direct discrimination comparator test from the DDA, as in the DRC recommendation 4.23.
  4. Allow claims to be brought for multiple or combined protected attributes, strengthening the DDA and making it compliant with article 5 of the CRPD.
  5. Reverse the burden of proof in the DDA. This means the person with disability must demonstrate the attribute and area and the respondent or duty holder must demonstrate that the unfavourable treatment was not because of the person’s disability and / or another protected attribute, as in the DRC recommendation 4.23.
  6. Introduce an enforceable positive duty to eliminate disability discrimination. The duty should have broad application to all duty holders under the DDA, as per DRC recommendation 4.27. Exceptions or limits to the application of a positive duty should only be applicable to the extent necessary to ensure proportionality and fairness, and care must be taken to ensure they cannot undermine the purpose of the duty.
  7. Adequately resource the AHRC to effectively enforce the positive duty by educating entities, promoting awareness, conducting investigations and monitoring compliance.
  8. Create a clear, standalone duty to make adjustments. The DDA should include a practical, timely obligation to identify and implement adjustments. Reforms should require transparent decision-making and consultation about adjustments with written reasons for refusals, especially in education, employment and essential services.

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  1. Update the definition of unjustifiable hardship, as per the DRC recommendation 4.32 as it considers the equal dignity and worth of people with disability as members of the community. It also invites the duty holder to consider and keep a record of the relevant circumstances considered when the adjustments were requested.
  2. Clarify the inherent requirements of a role so people with disability are not discriminated against when applying for a job. Amend section 21A of the DDA, as per DRC recommendation 7.26, to include the nature and extent of any adjustments made and extent of consultation with any person with disability concerned, as relevant factors of inherent requirements of a particular employment role.
  3. Protect the right to learn, as per DRC recommendation 7.2, as follows:
    • Amend section 22(2)(b) of the DDA to cover ‘suspension and exclusion’ as well as expulsions.
    • The DDA and associated Disability Standards for Education should be amended to require education authorities to avoid the use of exclusionary discipline on students with disability unless exclusion is necessary as a last resort to avert the risk of serious harm to the student, other students or staff.
  4. Include a standalone prohibition of offensive behaviour in the DDA, similar to section 18D of the Racial Discrimination Act. We support the inclusion of exemptions to be modelled off section 18C of the Racial Discrimination Act, as in recommendation 4.29 of the DRC.
  5. Amend the DDA to protect people with a disability from vilification, as in recommendation 4.30 of the DRC.
  6. Amend the DDA to ensure all people with disability are protected from unlawful discrimination, regardless of the nature of their engagement with government including but not limited to police, prisons and child safety. QIDAN fully endorses recommendation 8.19, with general exemptions around unjustifiable hardship applicable, where appropriate.
  7. No more excuses to discriminate. Update the DDA exemptions as follows:

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  • Remove section 46 of the DDA, instead insurance and superannuation companies should apply for a temporary exemption and demonstrate the basis for their application, such as under the current section 55 of the DDA.
  • All exemptions should be regularly reviewed (every 5 years or so) to ensure they reflect community standards and appropriately balance individual’s and community’s rights.
  • Section 52 of the DDA should be amended such that the extent of lawful discrimination against migrants with disability is narrowed while still balancing the policy consideration of protecting public health.
  • The Australian Human Rights Commission should be given the power to grant special measures certificates. And special measures should be defined in consultation with people with disability. We recommend the reference to “special needs” is removed from section 45 of the DDA.
  1. Create a pass similar to the Queensland Translink Assistance Animal Pass but which applies to all community settings, not just Brisbane City Council transport services as the Translink Assistance Animal Pass is currently limited to. This will assist in narrowing the DDA exemption under section 54A.
  2. Encourage the use of disability action plans as another practical way of ensuring compliance with a positive duty to eliminate discrimination.
  3. Ensure enforcement of Disability Standards are strengthened through the introduction of a positive duty. Provide the AHRC with additional powers to enforce such compliance, including through guidance in preparation of disability action plans.
  4. Create a Federal Human Rights Act to provide for a more complete and streamlined equality framework that safeguards and promotes fundamental human rights, including for people with disability.

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Celebrate people with disability and protect them from discrimination

This section covers questions 1-11 of the Issues Paper.

The work of QIDAN is grounded in the Convention on the Rights of Persons with Disabilities (the CRPD). We consider there could be additional benefits to people with disability if the practice and wording of the CRPD were included in the objects provision of the DDA. This will ensure the interpretation of the DDA would be consistent with Australia’s obligations under the CRPD, which provides a strong and aspirational model for the protection and advancement of the rights of people with disability.

Support disability pride

The CRPD creates a blueprint for a progressive social model of disability, defining discrimination on the basis of disability in terms of the interaction between a person’s impairment and their environment. There is an important distinction to be made between the terminology “impairment” and “disability”. Impairment attributes the focus of the limitations on the person and fails to acknowledge the importance of external barriers. In contrast, disability is used in the CRPD as an evolving concept, which recognises that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.⁴ People with disability enrich our society by bringing diversity to our communities, however they become disabled because society is not built for them.

The definition of disability must use respectful and affirming language and reflect the rights of people with disability. We recommend the removal of references to outdated and inappropriate language such as ‘malfunction’, ‘malformation’ and ‘disfigurement’ (in paragraphs (e) and (f) of the definition). This inherently deficit-based language carries unnecessarily negative undertones, and may create feelings of exclusion and disempowerment, reinforce harmful stereotypes and erode trust. Instead, the definition

⁴ United Nations Convention on the Rights of Persons with Disability, Preamble, (e).

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should use language that better reflects modern understandings of disability. For example, paragraph (f) should use the term ‘condition’ instead of ‘malfunction’.

The definition must use language inclusive of people with neurodiversity. Neurodiversity is often considered a difference rather than a ‘disorder’. As such, many neurodivergent individuals, such as those with autism or psychosocial disabilities, do not identify with the current deficit-based language in the definition of ‘disability’. Further, the invisibility of many neurodivergent conditions often results in unique forms of discrimination. To uphold the intent of the DDA to provide protection against discrimination for all people with disabilities, the definition must be framed in a way that clearly encompasses neurodiverse experiences, ensuring these individuals are not inadvertently excluded from its protections.

The reference to ‘bodily functions’ in paragraph (a) should be amended to ‘body functions’. The term ‘bodily functions’ is often subconsciously inferred to only mean incontinence-related issues whereas the term ‘body functions’ is a more neutral and medically accurate term that better reflects the full range of physiological processes.

QIDAN believes that protecting people experiencing addiction is a pressing and important issue, which justifies its inclusion in the DDA, rather than through other means (such as a legislative note). It is our experience that people with disability may use substances to mask or manage other symptoms that result from severe depression or Post Traumatic Stress Disorder for example. Including ‘addiction’ in the definition improves clarity of the legislation and facilitates interpretation of the legislation.

The Disability Inclusion Act 2024 (ACT) contains a more modern definition:

Disability -

(a) means any impairment or functional limitation that, in interaction with a barrier to accessibility, hinders the full and equal participation of a person with disability in society; and

(b) includes an impairment or functional limitation -

(i) that is permanent, temporary or episodic in nature; and

(ii) whether or not it can be noticed by others.

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Support and protect intersectionality

The CRPD recognises that people with disability have intersecting layers of identity, of which disability is one. Intersectionality can result in multiple and compounding forms of discrimination experienced by people with disability, leading to intersectional discrimination.⁵ Allowing claims to be brought for multiple or combined protected attributes not only strengthens the DDA making it compliant with article 5 of the CRPD, it addresses the intersectional discrimination faced by people with disability, acknowledging they have been discriminated against because of their multiple identities. Doing otherwise fails to appreciate the nature and impact of intersectional discrimination.

Simplify the direct and indirect discrimination tests

It is argued that allowing claims to be brought for multiple or combined protected attributes adds complexity for claims of disability discrimination. However, it is our view that it is the use of the comparator test in direct discrimination that is particularly problematic, not the intersectional claims. That is because the comparator test focus on comparing with someone real or hypothetical, instead of focusing on the harm on the affected person. We agree with the DRC that the focus of the test should be on the unfavourable treatment or detriment that the person with disability has faced, and that the respondent should be responsible for proving the reason for their treatment of the person with disability was not because of their disability (as the current approach in the Fair Work Act 2009). Therefore, we support the DRC recommendation 4.23 to remove the comparator requirement from the DDA and to shift the burden of proof to the respondent or duty holder.

When it comes to the definition of indirect discrimination, it is QIDAN’s views that the reasonableness element should be removed, as it would make the test more objective and less subjective with what appears to be implicit excuses and defences for discriminatory actions. The term ‘reasonable’ has gained more importance than the existence or non-

⁵ DRC volume 4, page 60.

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existence of adjustments, which is the focus of avoiding discrimination that needs flexibility and time to be implemented. The DRC proposed a much simpler way to address what has become a set of complex layers: adjustment should be made, unless an unjustifiable hardship would be imposed on the respondent. The next focus is on the definition of unjustifiable hardship. But for the purposes of indirect discrimination, ‘reasonable adjustments’ should be replaced by ‘adjustments’, not only as an element of indirect discrimination but throughout the DDA.

Moreover, we agree with the AHRC and the QHRC that the language of ‘does not or would not comply or is not able or would not be able to comply’ in section 6(1)(b) is not necessary as the reference to “disadvantage people with disability” in (c) is sufficient to capture inability to comply with a condition, requirement or practice.⁶ This would also remove unnecessary complexities and provide for a clear and more straightforward concept for people to navigate.

Table: Proposed changes to direct and indirect discrimination tests

Current definition QIDAN proposed reform
Elements of direct discrimination • Less favourable treatment (comparator)
• Causation		 • Unfavourable treatment (NO comparator)
• Causation
Burden of proof • The applicant must show facts and circumstances of the detriment they suffered.
• The applicant must show that they are a person with disability.
• The applicant must show that the detriment they suffered was because of their disability.		 • The applicant must show facts and circumstances of the detriment they suffered.
• The applicant must show that they are a person with disability.
• The respondent must show that the detriment the applicant suffered was NOT because of their disability.

⁶ QHRC, “Building belonging”, 98-101; Australian Human Rights Commission, Free and Equal: An Australian Conversation on Human Rights, Australian Government, 2021, pp 296–297.

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| Elements of indirect discrimination | • A requirement to comply with a condition, requirement or practice.
• A requirement disadvantages people with disability.
• A person does not or would not comply or is not able or would not be able to comply with the condition.
• It is not indirect discrimination if the condition, requirement or practice is reasonable.
• Exception: Not indirect discrimination if avoiding discrimination would impose an unjustifiable hardship. | • A requirement to comply with a condition, requirement or practice.
• A requirement disadvantages people with disability.
• Not indirect discrimination if avoiding discrimination would impose an unjustifiable hardship. |

Positive duty: a crucial step towards equality

This section covers questions 12-15 of the Issues Paper.

To promote equality and inclusion we must shift from a reactive model which is generally individual based, to prevention and elimination of systemic barriers for people with disability more broadly. We need positive changes and actions to achieve inclusion. Introducing a positive duty in the DDA would further support its existing objects as well as the implementation of the CRPD, as it provides adequate protection in the first instance which may prevent the discrimination from occurring. During the Queensland anti-discrimination reform, of the 33 submissions made to the QHRC regarding the reforms to the ADA, 29 were in favour of a positive duty in some form.⁷

Applying a positive duty to both the public and the private sectors is an encouragement to take meaningful positive action to eliminate discrimination. Without an enforcement of a positive duty, the discrimination framework will continue to be reactionary with little to no change to community behaviour.

⁷ QHRC, “Building belonging”, 118.

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By introducing a positive duty to prevent discrimination, those who hold this duty must become informed about what it entails. This will encourage greater awareness about disability issues and rights, which in turn supports a collective cultural shift to improved equity and inclusion for all. Positive duty can act as a powerful mechanism for identifying key issues within the disability community, enabling governments, organisations, and employers to identify patterns of discrimination, improve educational and awareness training, and re-design their policies towards better inclusion and diversity.⁸

Adequately resourcing the AHRC is an essential step to effectively enforce the positive duty by educating entities, promoting awareness, conducting investigations and monitoring compliance. The power of the AHRC to enforce a positive duty should be led by people with disability who are experts in discrimination matters.

Invest in support, not in punishment

Queensland Advocacy for Inclusion (QAI), one of QIDAN members, leads the A Right to Learn campaign, which is made up of a coalition of community organisations and support services. The coalition are publicly calling on the Queensland Government to conduct an inquiry into the use of school disciplinary absences in Queensland State Schools. As part of its role leading the campaign, QAI commissioned an analysis of the economic impacts of suspending students with disability from school. In summary the analysis found:

Cohort Number
Number of Prep to Year 12 students in Queensland with a disability who receive short suspensions each year 16,118
Short term impacts (per year) Amount / Cost
Annual parent / carer opportunity cost $14.1m
Number of students not completing Year 12 2,917
Short team impacts (for suspended students aged 14-17 per year) Cost
Youth Justice detention costs $4.1-7.4m
Youth Justice community-based supervision order costs $1.4-2.6m

⁸ Colm O’Cinneide, “A New Generation of Equality Legislation? Positive Duties and Disability Rights,” in Disability Rights in Europe: From Theory to Practice (Hart Publishing, 2005): 235

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Long term impact (per year) Cost
Average annual income gap for suspended students with disability who do not complete Year 12 (per person) $14,105
Average annual income gap for all students with disability and suspensions who do not complete Year 12 $41.1m

The above are the economic costs alone. If added to other impacts and non-quantified impacts (such as mental health, life satisfaction and wellbeing, and increased income support reliance), it all results in a costly discriminatory system that denies children with disability their right to learn.

The Building Belonging report highlights the financial costs of discrimination. One submission stated “[it] is causing me a great deal of stress, and I worry about my financial future and not being able to provide for my child”.⁹ Deloitte research found that, in 2018, lost wellbeing due to discrimination cost, on average, $5000 per victim.¹⁰ Legal Aid Queensland outlines that their services – preparing and lodging a discrimination complaint, conciliation conferences, and any hearing attendance - can cost up to $4650 for a complaint case.¹¹ This highlights the mental and financial strain that pursuing a discrimination claim through the Commission and Tribunal can have on a person with disability and relevant bodies. The current legal tests for discrimination also disempower some individuals from speaking out, as the need for a hypothetical comparator of a person in similar circumstances is technically challenging and confusing.¹² If the system relies on individuals to report discrimination as it occurs, but individuals do not report discrimination due to these barriers, the anti-discrimination system is failing.

Current discriminatory systems are not necessarily cheaper or more effective. If the financial resources above mentioned were invested in an effective positive duty, we would be investing in the futures of our children and in making our schools and communities

⁹ QHRC, “Building belonging”, 60 ¹⁰ QHRC, “Building belonging”, 60. ¹¹ Legal Aid Queensland, “Scale of Fees – Civil Law,” February 19, 2015, https://www.legalaid.qld.gov.au/files/assets/public/v/6/about-us/scale-of-fees/laq_00081-scale-of-fees-civil-law.pdf. ¹² QHRC, “Building belonging”, 70.

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more inclusive. Schools and other systems like health and the employment sector must be resourced properly to perform their positive duties.

It is no longer a question of whether we can afford positive duties, it is whether we can afford not to have them. Therefore, we fully support the DRC recommendation 4.27 to introduce a positive duty on all duty-holders under the DDA.

Make the positive duty practical, with no blanket exemptions

For it to be effective, a positive duty must be explained through clear legislation and examples of how it would work in everyday life.¹³ In practice, an organisation could implement a positive duty by understanding the core principles of the DDA, implementing forms of anti-discrimination, pro-inclusion training, completing a review of internal complaints and procedures, and evaluating any subsequent systemic issues that arise. The Building Belonging report identified that many organisations want to ‘do the right thing’ as a duty holder but lack the knowledge on how to do so.¹⁴ This is why, firstly, the duty holder must be clearly identified. In Queensland, the QHRC recommends that the positive duty should be applied to anyone who has a legal obligation under the ADA, like employers, public sector organisations, and educational institutions.¹⁵

The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) provides a useful framework for how duty holders implement the positive duty that exists in Victorian legislation, in their Equal Opportunity Act 2010. The VEOHRC provides clear and concise, context-specific examples for different types of organisations, educational institutions, government bodies, applicable to all levels of duty holders.¹⁶ By outlining clear steps with real examples of how the positive duty works, duty holders are not only more likely to comply and confidently uphold their duty, but people with disability can become aware of exactly what is expected of duty holders when implementing the positive duty.

¹³ QHRC, “Building belonging”, 14. ¹⁴ QHRC, “Building belonging”, 13 ¹⁵ QHRC, “Building belonging”, 230 ¹⁶ Victorian Equal Opportunity and Human Rights Commission (VEOHRC), “Positive Duty,” Victorian Equal Opportunity and Human Rights Commission, n.d., https://www.humanrights.vic.gov.au/for-organisations/positive-duty/.

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Each of the following example measures are proportionate to the size and resources of the duty holder, as listed by the Victorian Commission:¹⁷

  • For a small business like a local not-for-profit organisation, they create a plan for meeting their duty by engaging a more diverse recruitment strategy.
  • For a large business, like a fashion marketing company, the HR manager conducts an audit into their operating procedures and changes any outdated policies.
  • For a sports club, they develop an advertisement strategy to encourage members with a disability to join and apply for funding to ensure their facilities are accessible.

To ensure that the positive duty encourages better inclusion, equality and awareness, it should not adopt a strictly punitive approach, or it will risk returning to the negative compliance approach reinforced by the current reactive anti-discrimination legislative system.¹⁸ Instead, it should reward compliance with positive duty obligations and progress towards inclusion, equality and awareness.

Nonetheless, the positive duty must have a regulatory body and effective enforcement mechanism to ensure non-compliance with the positive duty is addressed, and the AHRC is most qualified to adopt this regulatory position, as it does not differ greatly to their current role in reviewing discrimination complaints.

The enforcement of positive duties is legally challenging when the mechanism relies on traditional judicial enforcement.¹⁹ Positive duties thus operate as a driver of cultural change, rather than solely a new form of enforceable legal rights. By allowing the AHRC to be the regulatory enforcement body of the positive duty, this would ensure that the mechanism is implemented by those with expertise in disability rights and those committed to protecting them²⁰, enabling the positive duty to be both a legal requirement and a catalyst to social change.

¹⁷ VEOHRC, “Positive Duty” ¹⁸ Colm O’Cinneide, “A New Generation of Equality Legislation?”, 226 ¹⁹ O’Cinneide, “A New Generation of Equality Legislation?”, 237 ²⁰ QHRC, “Building belonging”, 237

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There should be exceptions or limits to the application of a positive duty, but only to the extent necessary to ensure proportionality and fairness, and care must be taken to ensure they cannot undermine the purpose of the duty.

A positive duty in the DDA should be contextual and flexible, considering the size, nature, and resources of the duty-holder, the practicability and cost of compliance measures, and any competing legal obligations. These factors are already embedded in the Sex Discrimination Act²¹ and the ACT²² and Victorian²³ models and should be replicated in the DDA to ensure consistency and legal certainty.

Any exceptions should be framed carefully as part of a proportionality assessment, rather than as blanket exemptions. This is crucial for the duty to constitute a robust mechanism for driving systemic change.

Inclusion benefits everyone and disadvantages no one

This section covers questions 16-26.

Standalone duty to make adjustments

Creating a standalone duty to provide adjustments would encourage decision-makers to ask themselves the right questions about inclusion and substantive equality. Moving away from “reasonableness”, which is a subjective element, also provides more clarity to duty holders who can objectively provide adjustments, unless unjustifiable hardship is imposed.

From a disability perspective, it is necessary to know whether the adjustment or accommodation is adequate to the specific needs of the person with disability and whether there is a commitment to continually reviewing its adequacy. Unfortunately, it is common that people without a disability misunderstand the needs of people with disability which contributes to discrimination. It is imperative for steps to be taken to try to understand a

²¹ Sex Discrimination Act 1984 (Cth), s 47C(6). ²² Discrimination Act 1991 (ACT), Part 9. ²³ Equal Opportunity Act 2010 (Vic), s 10.

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person’s disability by knowing their experiences and history, including the quality of current and previous support arrangements and instances of abuse and neglect.

We support the creation of a standalone duty to make adjustments. This should include a practical, timely obligation to identify and implement adjustments, with written reasons for refusals, especially in education, employment and essential services, and it should involve consultation with people with disability. The creation of a standalone duty is an invitation to people with disability and duty holders to have a genuine and meaningful conversation about adjustments. Failure to do so would result in a discrimination complaint on the specific ground of adjustments not being provided or being refused. In other words, this would prevent the failure or refusal from happening in the first place.

Where adjustments are implemented, duty holders should develop a plan to review and update them, recognising disability is not static and individual needs may evolve over time.

As outlined in the DRC Report, removing the term “reasonable” from “reasonable adjustments” removes the misconception that reasonableness is an element in deciding whether an adjustment is required.²⁴ Exemptions and exceptions provided in the Act, such as the unjustifiable hardship test, will continue to provide reasonableness (as a broader term), thus preventing unrealistic burden on duty holders.

Adjustments should be required in areas not presently covered by the DDA, particularly corrective services and child protection (in which people with disability are overrepresented). Other Anti-Discrimination Acts, such as the Racial Discrimination Act 1975 (Cth) are not artificially restricted to certain ‘areas of public life’.

In addition, the duty (if adopted) should be drafted to ensure that duty holders are not responsible for circumstances outside their knowledge and/or control.

Unjustifiable hardship: an opportunity to test equality for people with disability

The current test for unjustifiable hardship has the capacity to erode equality for people with disability as it places the individual requiring adjustments against a financial balance

²⁴ Volume 4, page 357.

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sheet without recognising the broader social benefits of inclusion. Many adjustments come at a cost with intangible immediate benefits. When a child with disability is refused adjustments at school due to costs, there is no calculation in this equation of the benefit to all of the children in the class of growing up familiar with such adjustment and having the potential new friend fully included into their classroom. As we outlined earlier, refusing adjustments is not saving costs, adding to the social long-term impacts of not having an inclusive community, the damage becomes immeasurable.

The CRPD talks about universal design as “the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialist design.”²⁵ These standards do not require an individual to prove the adjustment is worth the cost and are a preferable approach.

The DRC’s proposed definition of unjustifiable hardship considers the equal dignity and worth of people with disability as members of the community. It also invites the duty holder to consider and keep a record of the relevant circumstances considered when the adjustments were requested. Although the DRC definition maintains the financial component as one of the circumstances to be taken into account when unjustifiable hardship is assessed, it does not place costs at the centre of the concept. Comparing benefits to costs is like comparing oranges to apples, and it takes us back to a comparator concept where people with disability need to demonstrate that adjustments requested are “cheap enough“ or “cheaper than”. Instead, we need to consider the benefits to society when all individuals are treated equally. Therefore, we prefer the definition of unjustifiable hardship proposed in the DRC recommendation 4.32 over the alternative definition suggested by the Issues Paper.

Genuine opportunity of employment

QIDAN supports the implementation of DRC recommendation 7.26, which proposes amendments to section 21A of the DDA, as per below:

²⁵ UN CRPD, Article 2.

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Section 21A of the Disability Discrimination Act 1992 (Cth) should be amended to expand the factors to be considered in determining whether a prospective or existing employee would be able to carry out the inherent requirements of a particular role. These factors include the:

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

The DRC heard evidence that uncertainty over “inherent” rules led to unnecessary exclusion of candidates with disabilities, resulting in discrimination.²⁶ The above proposed additions to the list of factors to be considered in determining whether a prospective or existing employee would be able to carry out the inherent requirements of a particular role therefore represent an improvement.

The inherent requirements exception should be construed strictly. Requiring express consideration of (a) the nature and extent of available or implemented adjustments and (b) consultation with the person with disability would embed proportionality within the DDA and align section 21A with the DDA’s unjustifiable hardship framework. It would also make the ‘inherent requirements’ essential to the functions of the role, not incidental tasks or employer preference, and must be assessed by reference to the position as adjusted, not in an unmodified form.²⁷ Incorporating these factors informs decision-making, guards against stereotypes, and ensures that incapacity is not asserted without practicable adjustments. The amendment would promote coherence across the DDA (in conjunction with Recommendations 4.25, 4.26, 4.32 of the DRC) and give effect to relevant CRPD requirements relating to work and employment.²⁸

Consideration should be given to inserting protections for the privacy of people with disability, who may not wish to share details such as sensitive health information for the

²⁶ DRC, Final Report – Volume 7B, from 388. ²⁷ See eg X v Cth [1999] HCA 63 at [11]; [104] and [144]-[160]. ²⁸ CRPD, article 27(1).

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purposes of ‘inherent requirements’ tests. Alternatively, guidance material to support people with disability and (prospective) employers may be sufficient.

A Right to Learn

The DRC recommended avoiding the use of exclusionary discipline on students with disability unless exclusion is necessary as a last resort to avert the risk of serious harm to the student, other students or staff. Frequently, the concept of exclusionary discipline, expulsion and suspension are used interchangeably, however they have different meanings and therefore the DDA should define exclusionary discipline to avoid confusion. In Queensland for example, the Education (General Provisions) Act 2006 uses the term “exclusion” when referring to expulsion or to the act of expelling a student. There are no provisions that refer to informal or temporary exclusionary discipline, like calling the parents to pick up their child earlier than usual or sending the student to another classroom, separating them from their peers. While expulsion and suspension are a form of exclusionary discipline, they are not limited to these two forms. ‘Exclusionary discipline’ refers to the exclusion of a student from a classroom, extracurricular activities or a school in response to what is perceived as negative or disobedient behaviour. It includes suspensions, exclusionary measures and expulsions, and it can be formal or informal, temporary or permanent.²⁹

Before using exclusionary discipline on students with disability, educational authorities should be required to:

(a) consult with the student with disability and their supports;

(b) consider all available and appropriate alternative adjustments, measures or actions;

(c) consider the impact of exclusionary discipline on the best interests of the student and their right to education; and

(d) consider the student’s disability, needs and age, and the particular effects of exclusionary discipline for young children.

²⁹ DRC, Volume 7A, 194.

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Provisions should also be made to ensure:

(a) a duty on principals to report the repeated use of exclusionary discipline involving a student with disability to an escalation point within educational authorities for independent case management;

(b) a robust review or appeals process for with supports for students with disability and their families or carers;

(c) students with disability have access to educational materials appropriate to their educational and behavioural needs while subject to exclusionary discipline;

(d) students with disability are supported to re-engage in education post exclusion;

(e) the creation and retention of documentation describing consultation and consideration; and

(f) the student is provided with reasons for the decision to use exclusionary discipline.

We also call for section 22(2)(b) of the DDA to be amended to cover ‘suspension and exclusion’ as well as expulsions, as per recommendation 7.2 of the DRC.

Recent Queensland data revealed a systemic failure where schools are suspending disabled students at alarming rates and it is getting worse. Students with disability are roughly 25% of the student cohort, but in term 2 of 2025 they made up 64% of suspended students in Queensland.

As we mentioned before, from existing economic cost analysis, we know that managing suspensions wastes $20 million annually, while families are losing at least $14 million in income. That is money that could create inclusive classrooms across Queensland, instead of funding exclusionary discipline.

The “Include me, don’t exclude me” report by the Queensland Family & Child Commission shared the experiences of children and young people who have been suspended or excluded from Queensland state schools.³⁰ They recommend school disciplinary absences should be used as a last resort, and suggest changes to the disciplinary process to adopt

³⁰ https://www.qfcc.qld.gov.au/sites/default/files/2025-09/Report-Include-me-dont-exclude-me.pdf

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the values of child rights and child-centered education across legislation, policy, and procedure, which would require adequately resourcing teachers and schools.

The DRC was clear: suspension must become a last resort. But right now, for students with disability, it is often the first resort. We need complete system redesign with students with disability and families leading the way - not tweaking around the edges. When schools create inclusive environments designed by and with students with disability, all students benefit from stronger learning communities, and we stop this pipeline from classroom to courtroom.

Amending the DDA gives us an opportunity to protect our children’s right to learn.

Case study

Georgia* contacted QAI’s Young People’s Program to seek advice regarding her 14-year-old daughter, Maddy*. Maddy has a physical impairment, an intellectual disability, is non-verbal, and uses Augmentative and Alternative Communication (AAC) to communicate. After a challenging primary school experience where Georgia consistently advocated for inclusive education, Maddy had been attending her local state high school with the appropriate adjustments that enabled her to access education on the same basis as her peers, and her educational journey had been progressing positively.

This changed when the school proposed a significant alteration to Maddy’s timetable. The new arrangement involved removing Maddy from two of her current mainstream classes and placing her in what the school described as “specialised intensive classrooms.” These classrooms were reportedly designed for students with higher support needs, but the school did not provide clarity around the cohort’s composition. The change meant Maddy would be removed from her established peer group and the friendships she had developed and placed into a different educational setting without proper explanation or consultation.

Georgia expressed strong concerns about the proposed change and formally communicated her objections to the school. Despite this, the school maintained that the

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transition to the specialised classroom setting was a reasonable adjustment and asserted that they knew what was best for Maddy in the educational context. The final decision was presented to the family just two days before the end of the school term, leaving very little time for Maddy to prepare for such a substantial shift. Furthermore, the proposal lacked detail around key elements, including physical accessibility, continuity of Maddy’s individualised curriculum, the makeup of her new peer group, and how the transition would be supported. There was also no discussion about how the new classroom would accommodate her AAC device without disrupting the existing setup in her home room.

Given the short notice and lack of clarity, Georgia was deeply concerned that the transition would not adequately support Maddy’s learning or wellbeing. An advocate from QAI discussed the situation with her and recommended she seek legal advice. Georgia was subsequently connected with a human rights solicitor. The advocate also encouraged her to request a delay to the transition, allowing time to properly prepare and ensure that Maddy’s needs would be met in any new learning environment.

Due to previous negative experiences within the education system, Georgia was particularly mindful of maintaining a cooperative relationship with the school. As a result, despite her strong belief that Maddy belonged in her mainstream classes with her peers, where any required adjustments could still be implemented, she agreed to a short trial period of the new arrangement as a compromise.

While the school claimed to have consulted with the family, there was no meaningful acknowledgment of Georgia’s concerns, and it appeared the school intended to proceed with the changes. Ongoing advocacy efforts resulted in a brief delay in implementing the new timetable, allowing additional time to prepare Maddy for the transition. Advocacy is continuing to monitor and assess the effectiveness and appropriateness of the new classroom arrangement, to ensure that Maddy’s rights and educational needs are upheld.

*Name has been changed for confidentiality purposes

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Extend protections to people with disability experiencing harassment and vilification

This section answers questions 27 to 32 of the Issues Paper.

As per recommendation 4.29 of the DRC, the DDA should be amended to include a standalone prohibition on offensive behaviour, similar to section 18D of the Racial Discrimination Act. We support the inclusion of exemptions to be modelled off section 18C of the Racial Discrimination Act, set out below:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

We endorse the DRC’s proposed definition for ‘offensive behaviour’ as follows:

It is unlawful for a person to do an act, otherwise than in private, if:

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

Furthermore, to address the gap of no legislative protection against vilification on the ground of disability, QIDAN fully endorses recommendation 4.30 of the DRC which proposes amendments to the DDA to protect people with a disability from vilification.

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Holding government workers accountable if they discriminate against a person with disability

QIDAN fully endorses DRC recommendation 8.19 which proposes an amendment to the DDA to ensure that it covers policing. It is our view that police do provide ‘services’ to the community. Take for example the Queensland Police Service, which contains a broad range of functions defined as ‘police service’, including when interacting with a person suspected of committing an offence but not being limited to initial investigations.³¹ The general exemptions around unjustifiable hardship are sufficient to maintain the minimum necessary for police to carry out their duties. This protection should include all government operations such as prison operations and child safety.

No more excuses for discriminating – make exemptions clear and minimum

This section covers questions 33-37 of the Issues Paper.

Over the years, exemptions, excuses and defences have crept into the anti-discrimination framework, which have had unexpected or excessive flow-on effects.

As an example, and of specific concern from a disability perspective is the exemption which allows discrimination in the areas of insurance and superannuation (section 46 of the DDA). This discrimination can occur even where there is no demonstrated actuarial, statistical or other data, or when they cannot be obtained. This has a particularly harsh impact on people with a history of mental illness, even when the mental health condition is diagnosed, treated and well managed. This outdated law entrenches and perpetuates an old stigma about mental illness and, perversely, deters some people from accessing mental health care because they do not want to be denied insurance or superannuation benefits. A better approach would be to require insurance and superannuation companies to have to apply for a temporary exemption and demonstrate the basis for their application, such as under the current section 55 of the DDA.

³¹ Police Service Administration Act 1990, 2.3.

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Permanent exemptions should only exist in circumstances where strictly necessary and which result in minimum intrusion on the rights of people with disability. Exemptions should be regularly reviewed (every 5 years or so) to ensure they reflect community standards and appropriately balance individual’s and community’s rights.

The AHRC should be given the power to grant special measures certificates, which could assist in providing certainty to duty-holders who wish to ensure their conduct falls within the special measures.³² A definition for special measures should be developed in consultation with people with disability and be aligned with the CRPD. In our view, section 12 of the Equal Opportunity Act 2010 (Vic) provides a good starting point, where special measure can be granted for the purpose of promoting or achieving substantive equality for members of a group with a protected attribute. Also, the reference to “special” in section 45 of the DDA should be removed from the phrase “programs to meet special needs”.

Furthermore, legal protection under the DDA is not available to migrants because any action permitted under the Migration Act is exempt from the operation of the DDA, as per section 52 of the DDA. This section should be amended such that the extent of lawful discrimination is narrowed while still balancing the policy consideration of protecting public health. Reforms should include the Federal Government reviewing and removing Australia’s interpretative declaration on Article 18 of the Convention on the Rights of Persons with Disabilities. The Welcoming Disability campaign calls for review of the existing migration provisions to identify a way that a migration health requirement can be enforced without discriminating against people with disability migrating to Australia. The foundation of this campaign is that our current migration health requirements and their application are inconsistent with international human rights law, as expressed in the Convention on the Rights of Persons with Disability (CRPD) and with Australia’s own Disability Discrimination Act.³³ Therefore, the DDA must be amended to include legal protections to migrants with disability.

³² AHRC, Free and Equal: A Reform Agenda for Federal Discrimination Laws (Position Paper, December 2021) 127-128. ³³ https://www.welcomingdisability.com/materials-for-learning

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Make the DDA effective and fit for purpose

This section covers questions 38-47 of the Issues Paper.

Assistance animals

QAI recently made a submission in respect of the Assistance Animals National Principles, providing that while consistency in accreditation requirements is important, imposing burdensome standards may serve as a disincentive to training providers becoming accredited under the standards.³⁴ There is already a shortage of accredited trainers, particularly in regional and remote areas of the country and making national accreditation requirements more complex could potentially exacerbate this.

The minimum training standards should not be too onerous for people with disability to satisfy. In Queensland, many people with disability who use assistance dogs struggle to meet the strict requirements required by the Guide, Hearing and Assistance Dogs Act 2009 (Qld) (GHAD Act). Among other things, the GHAD Act requires payment for regular and expensive training and accreditation processes which, in some instances, are not required and can be inaccessible to the people they are supposed to ultimately help.

An evidenced model that should be adopted could mirror the Translink Assistance Animal Pass, as compared to the GHAD Act certification and handler identity processes. Benefits of this system include:

a. it applies to all assistance animals, not just dogs, in keeping with the definition in the DDA. This reflects the increasing recognition of the benefits of assistance animals for people with a variety of disability types, not just people with vision impairments;

b. it is inexpensive to obtain, as compared to the costs of applying for a Handler Identity Card which must be renewed every 3 years and at significant cost to the person with disability due to the training and certification required. This is critically important, given that many people with disability experience poverty and financial hardship;

³⁴ https://qai.org.au/wp-content/uploads/2025/07/Assistance-Animal-National-Principles-May-2025.pdf

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c. the Translink Assistance Animal Pass is much simpler to apply for and has a longer validity period of 5 years, making it a far more accessible option; and

d. it still requires assistance animals to meet standards of hygiene and behaviour that are appropriate for an animal in a public place by requiring veterinary and trainer declarations of suitability.

Introducing a nationally consistent identity card and logo would be a welcome development, with further consideration being necessary as to who will be responsible for issuing these cards. This will provide clarity to duty holders, for the purpose of the exemption under section 54A of the DDA. QIDAN recommends the creation of a pass similar to the Queensland Translink Assistance Animal Pass but which applies to all community settings, not just Brisbane City Council transport services as the Translink Assistance Animal Pass is currently limited to.

Specific training organisations should not be prescribed by regulations. The current shortage of accredited trainers in regional and remote parts of Australia will continue to present a barrier to people with disability accessing a Public Access Test (PAT) for their animals if this test can only be performed by a limited number of training providers. PAT 5 tests are likely to incur costs for all, but these would be significantly higher for people with disability in regional and remote areas.

Disability action plans

Encouraging the use of disability action plans is another practical way of ensuring compliance with a positive duty to eliminate discrimination. Minimum requirements for action plans and review periods should be designed and drafted by people with disability.

Our suggestions for minimum requirements are:

  • An Inclusive Employment Strategy: for recruitment and retention of people in the workforce including a set of disability work policies, disability related leave entitlements and unfunded workplace modifications which are currently out of the scope of Job Access.
  • Disability awareness training to all staff to ensure a safe working environment.

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  • Accessible workplace environments and systems with the supports for passive technology and alternate communication.
  • Accountability: An aim to reach a 20% disability employment target in line with population rates.

The AHRC should be able to suggest improvements to disability action plans and reject those that fail to meet such requirements. An action plan template or guideline should be produced by disability leaders in the community (like People With Disability Australia or Inclusion Australia) and be promoted in the AHRC.

Enforce Disability Standards, reward inclusion, mandate consequences for noncompliance

The introduction of a positive duty will strengthen enforcement of Disability Standards, as it would mean duty holders would need to ensure they are compliant with the Disability Standards to meet their obligation under the positive duty. It will be beneficial to provide the AHRC with additional powers to enforce such compliance, including through guidance in preparation of disability action plans.

For the Education Standards, the language in the Standards and Guidance Notes should be amended to impose clearer legislative requirements on education providers to respond to requests for adjustments in a systematic and transparent manner, such as through the introduction of enforceable timeframes and a legal requirement to provide written responses to requests for adjustments.

Reform must urgently address poor compliance with the Standards and the subsequent discriminatory decision-making that continues to plague the educational experiences of students with disability, as previously outlined. Greater consistency, transparency and accountability are desperately needed. Decision-making in relation to requests for adjustments must not fall solely in the hands of principals but should be the outcome of a

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consultation process that meaningfully involves all stakeholders, including people with disability and the Regional Office.³⁵

On the Disability Standards for Accessible Public Transport (DSAPT), QAI has previously recommended in its review of the DSAPT that legislative change is required to ensure the accessibility of public transport from planning to procurement, manufacture and service.³⁶ This includes compliance with the DDA, the DSAPT and consultation with people with disability throughout the process. To ensure that public transport meets everyone’s needs, people with disability must co-design the transport hardware, physical infrastructure, communications and staffing arrangements.

A noted difficulty with the Transport Standards is that no matter how specific and detailed they are, they cannot cover every transport contingency. The Standards can be specific about the dimensions of particular public transport conveyances by stipulating that access paths, for example, must be of a minimum width, or that the toilet pan must be placed a certain distance from the wall, and that the bathroom must have certain minimum dimensions to ensure that a wheelchair can move reasonably freely. The public transport journey, however, does not begin or end at the vehicle. The Standards say little about what happens before the person arrives at their seat or allocated space in the vehicle and after they leave it. There is enormous variability in the built environment and associated infrastructure that is part of the whole journey. This supports the necessity to require people with disability to assist in the design phase of the transport hardware, infrastructure, communications and staffing arrangements.

Further options for reform

As mentioned earlier, in 2021, the QHRC undertook a review of the ADA. This review was the first holistic consideration of the ADA since its introduction and provided a

³⁵ Please see QAI’s 2020 review of the Disability Standards for Education. We also note the Australian Government is currently reviewing the Standards. ³⁶ https://qai.org.au/wp-content/uploads/2021/12/Disability-Standards-for-Accessible-Public-Transport-Jan-2019.pdf

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valuable opportunity to ensure that Queensland’s anti-discrimination laws are up to date with the changing needs of our society.

The final report Building Belonging report made 46 recommendations aimed at modernising and strengthening Queensland’s discrimination protections.³⁷ In support of all recommendations made in that report, the then proposed Anti-Discrimination Bill 2024 would fundamentally alter the operation of Queensland’s discrimination legislation with a view to ensuring it is a modern and effective instrument that appropriately protects people from discrimination, sexual harassment, vilification and other objectionable / unlawful conduct. The proposed reforms were broadly supported by the Queensland community. However, unfortunately the reforms were delayed with no future date announced for the new laws to come into effect. The amendments proposed in the Queensland ADA should be considered for the amendments of the DDA, where relevant.

The role of the AHRC

The AHRC should be responsible for educating duty holders and the community about their obligations and rights. This should be disability led, and it may include involving key leaders in the disability community to deliver training in disability awareness and protection against discrimination. The AHRC website should contain information and guidance materials, in accessible formats. People with disability need to understand what their rights are under the DDA. Additionally, business and employers should be made aware of their obligations under the DDA and be held accountable as part of their licenses, permits and regulatory requirements. A review should be prescribed after a reasonable period (e.g. five years) to examine the effectiveness of the changes made.

Create a Federal Human Rights Act

Essential reforms to the DDA can be improved in their operation and effectiveness with the introduction of a Human Rights Act. As shown in Victoria, Queensland, and the Australian Capital Territory that have both discrimination laws and a Human Rights Act (in Victoria

³⁷ https://www.qhrc.qld.gov.au/about-us/reviews/ada

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called a Charter), the positive rights in a Human Rights Act improve the interpretation and operation of discrimination acts by including the rights such as the right to equality before the law, the right to privacy, and the right to dignified treatment that can be included in determining whether a person has been discriminated against. An Act’s ‘dialogue model’ can be used to challenge laws and regulations that are in themselves discriminatory. Conversely, reformed and modernised discrimination laws help with the operation of a Human Rights Act by complementing the rights outlined in an Act must be enjoyed by all without discrimination. The DRC recommendation of both positive rights and reforms to discrimination law are reflected in their recommendations,³⁸ and whilst the DRC were unable to consider a Human Rights Act due to their terms of reference and instead recommended a Disability Rights Act, the July 2024 joint statement of 12 disability representative organisations advocating for a Human Rights Act³⁹ shows the support for the benefits of a Human Rights Act alongside reforms and modernisation of the DDA. The Parliamentary Joint Committee on Human Rights inquiry into Australia’s human rights framework reported on 30 May 2024 their recommendation for a Human Rights Act, and that recommendation should be supported as part of the implementation of the DRC alongside reforming the DDA.⁴⁰ Australia remains the only democratic country in the world without a constitutionally enshrined or legislated national bill or charter of rights.⁴¹

Conclusion

QIDAN is thankful for the opportunity to contribute to this consultation. We are happy to provide further information or clarification of any of the matters raised in this submission upon request.

³⁸ DRC, Volume 4, Recommendations 4.01 - 4.34. ³⁹ https://wwda.org.au/our-resources/publication/strengthening-protection-the-rights-of-people-with-disability-through-a-national-human-rights-act-hra/. ⁴⁰ Inquiry into Australia’s human rights framework, Parliamentary Joint Committee on Human Rights, Commonwealth of Australia, May 2024, Recommendations 1 to 4. ⁴¹ Legislating Human Rights Act From Whitlam to Now, by Cassandra Le Good & Professor Azadeh Dastyari: https://static1.squarespace.com/static/660249bd40e1686fe5cab7d1/t/68e85848401e4b7ec625a767/1760057416262/Human+Rights+Acts+from+Whitlam+to+Now+%5BOnline+Copy%5D.pdf.

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