Review of the Disability Discrimination Act 1992

Introduction

Thank you for the opportunity to make a submission in the review of the Disability Discrimination Act 1992 (Cth) (‘DDA’). In this Submission, I deal with the way the DDA currently provides for discrimination in sport and argue that the DDA should be amended regarding sport. Additionally, and to support the submissions regarding sport in the DDA, I address the fact that if the DDA is amended, there will be an impact on the provisions regarding sport as they are currently in the DDA. I also note some issues in relation to the questions in the Disability Discrimination Act 1992 Review Issues Paper (RIP).1 The submission is made in two parts; Part I deals with Sport specifically, and Part II deals with the RIP questions and proposals for amendment.

As a Lecturer at the University of the Sunshine Coast (and mother of a Paralympian— I have written extensively about the inclusion of children with disability in sport, through the discrimination lens. This has included papers on the DDA and the Convention on the Rights of Persons with Disabilities.2 My doctorate proposed Guidelines for the inclusion of children with disability in sport, to assist in the difficulties and misunderstandings regarding discrimination. Sport is an important component of our national identity and fabric. Whether taking part or watching, it is relatively settled that sport is part of Australian culture.3 This is perhaps one of the reasons sport features in a specific section of the DDA, which provides that discrimination in sport on the basis of disability is unlawful.4 Sport, however, does not overtly receive attention in the DRC and RIP.

The Royal Commission referred fleetingly to sporting opportunities in Recommendation 7.4 and 7.15 in relation to school experiences.5 The recommendations included facilitating, to the ‘maximum extent feasible’, participation in sporting activities, in ways that involved the mainstream.6 What was not identified in the outcomes from the Royal Commission, was the extent to which children with disability are not provided fair and meaningful comparable sporting activities in the school system and the extent to which people with disability are not provided fair and meaningful comparable sporting activities in the community and pathway sporting systems in Australia. This does not mean that there is not a problem in the experiences in sport for people with disability in Australia. There is. I will explain further in this submission.

The final question in the RIP is: 51. Are there any other issues with the Disability Discrimination Act that should be considered as part of this review? It is my submission that the Review of the DDA cannot omit consideration of the provisions regarding sport, and the impact of amendments on sport, because to do so will create/continue confusion in the legislation, impact the operation of the legislation regarding sport, and miss an opportunity to provide clear guidance and a cultural shift in relation to disability that is being urged by the DRC.

1 Australian Government, Attorney-General’s Department, Disability Discrimination Act 1992 Review Issues Paper, 2025. 2 The Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). 3 Grit & Gold Exhibition: Tales from a sporting nation, opens in a new tab National Library of Australia, (last updated 10 September 2024). 4 S28, Disability Discrimination Act 1992 (Cth). 5 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability: Final Report, September 2023, 241and 250. 6 Note here the differences arising from a recommendation regarding special schools and inclusion in mainstream schools being the driver of alternative options, but with the same intent—to align with mainstream. These recommendations each provide for sporting activities for students with disability in non-mainstream schools either together with or in partnership with the mainstream schools.

Part I: Sport

There is no specific reference to sport or recreation in the RIP. There is limited reference to sport and recreation in the DRC Report—and when there is a reference it is only in relation to being part of the schooling experience—and not in any detail.⁷ Here I address issues with the DDA as it relates to sport. There are four key reasons for this. First, because the amendments proposed will impact sport and s 28 of the DDA. Second, because there are steps that can be taken to improve sport for people with disability through the provisions of the DDA. Third, because the CRPD is not reflected in the DDA as far as sport is concerned. Fourth, the DDA is confusing and inadequate as far as the treatment of people with disability in sport. In my submission, I will demonstrate the difficulty with the current legislation, for preventing discrimination and providing for the treatment of children with disability when it comes to school sport.

In this submission, I will also set out what the CRPD provides regarding sport, and what the DDA would need to provide, to implement the CRPD. The DDA does not currently implement the CRPD in relation to sport. The DDA should implement the State Party obligations in the CRPD, because Australia is a signatory to the Convention, the CRPD was designed with significant input from Australia, the CRPD provides for clear implementation of the transformational model of disability—the recognised approach to substantive equality and non-discrimination,⁸ and the amendments proposed to the DDA in the DRC review, propose reference to the CRPD. Implementing the CRPD is an obligation and a ‘responsibility’ for Australia, particularly in relation to sport where the provisions are specific.

Sporting Landscape in Australia

Sport is an activity on which Australian society places significance. There is a culture of sport in Australia that is important and central to the society.⁹ Sport is conducted in schools throughout the country, and there are thousands of sporting clubs and associations that conduct a variety of sports. The Australian Government invests considerable funds in sport, including the Australian Sports Commission, the Australian Institute of Sport, and the National Integrity Framework—including Sport Integrity Australia and the National Sports Tribunal.

The numbers of people in Australia who are involved in sport is significant:

78% of Australians do ‘sport or physical activity’ more than once a week.
67% of Australians with disability do ‘sport or physical activity’ more than once a week.¹⁰

Australia’s Play Well Strategy –National Sport Participation Strategy

Released in November 2023, the Play Well Strategy (PWS) is the National Sport Participation Strategy. The PWS was co designed by industry and government, to improve the sport industry in Australia.¹¹ This strategy guides the Australian sport industry and government to develop and enhance sport into the future. The strategy is helpful to understanding the sports industry, the importance of sport in

⁷ (n5). ⁸ United Nations Committee on the Rights of Persons with Disabilities, General comment No.6 on equality and non-discrimination Published 26 April 2018; CRPD/C/GC/6. ⁹ See for example, Zakus, D., Skinner, J., & Edwards, A. (2009). Social capital in Australian sport. Sport in Society, 12(7), 986–998. https://doi.org/10.1080/17430430903053224. ¹⁰ https://www.ausport.gov.au/clearinghouse/evidence/persons-with-disability-and-sport. ¹¹ Australian Sports Commission, PLAY WELL — AUSTRALIA’S SPORT PARTICIPATION STRATEGY, November 2023.

Australia and the important role the law plays in sport. This is relevant to this submission, because it helps answer the ‘why’ sport should be considered and addressed.

The PWS is designed to address the evolving nature of our society and the way sport is delivered and enjoyed. Kieren Perkins, summarises about the PWS;

We know Australians value sport – it’s part of the fabric of who we are – but sport also needs to change. It needs to be more open and inclusive, and we need to ensure that we are providing more opportunities for all Australians to be involved in sport in whatever role they choose.¹²

The PWS is based on the understanding that there are barriers to sport participation, and focuses attention on ‘inclusion’—defined in the strategy as ‘Proactive and intentional behaviours that create safe and welcoming environments where people can fully contribute and feel a sense of wellbeing connection and belonging.’¹³ Belonging is defined as, ‘The feeling an individual has when they feel recognised, respected, valued and part of something bigger than themselves.’¹⁴

Importantly, the PWS includes priority areas of ‘Equity’ and ‘Transforming Culture’; ‘Transforming the culture of sport in Australia to create an environment where everyone can access safe, inclusive, welcoming and fun experiences.’¹⁵

This PWS supports the submission that the law needs to evolve to reflect the community, and their needs. The strategy calls for changes to the way sport is designed and delivered, and cultural shift in the way our society considers sport inclusion. The law is an important and powerful enabler to support this strategy, and more importantly, can inhibit the strategy if it is misaligned. The DDA currently does not support the initiatives, ambitions and intention of the PWS.

Australia’s ‘National Sport Participation Strategy’ notes;

‘The current sport system is too rigid in its structures and embedded practices. Sport can be more accessible and culturally safe to provide opportunities that meet people’s needs and preferences. Continued action is required to increase diversity and inclusion and to ensure fair outcomes for everyone involved in sport.’¹⁶

Involved in the development of the strategy, Michael Walker PLY notes,

Sport participation needs to change to ensure it is reflective of Australia’s changing society. It is imperative that we do not leave anyone behind.¹⁷

Efforts to improve sport for people with disability are included in the National Sport Participation Strategy. Many of those strategies will be enhanced and achieved with the support of the law. Currently the law does not support those strategies.

Attention to Disability Sport

The DRC considered the experiences of people with disability in varying contexts. Sport was not included. This does not mean that there are not issues with the treatment of people with disability in sport. For example, while I do a significant amount of work in the area of the rights of people with disability in sport, however, it did not occur to me to attend at the Royal Commission—because the invitation to attend was relating to ‘neglect, exploitation and violence’, not ‘discrimination’. As explained above in relation to the state of research about people with disability undertaking sport, the

¹² Ibid,1. CEO, ASC. ¹³ Ibid, 9. ¹⁴ Ibid. ¹⁵ Ibid,26-39. ¹⁶ Ibid,6. ¹⁷ Ibid,6.

lack of attention to the topic is, in itself, potentially discriminatory, and indicates a lack of understanding about sport for people with disability. One reason that sport may not receive attention in discrimination discussions, is because it is thought that disability sport offerings are satisfactory. Disability specific sport is considered to provide for people with disability. But it does not necessarily. There are people who do not meet the criteria to be ‘classified’ to be included in disability sport— they are not disabled enough. Additionally, not all events or sports are offered to disability specific categories (for example the 800/1500m swim). There are people who do not want to play disability specific sport and would rather play with the mainstream— with fairness. However, that is not ever provided. When a person with disability takes part in mainstream sport, they do so ‘as an able bodied’ athlete. Indeed, school sport regularly specifies the ‘requirement’ that a child with disability who takes part in mainstream sport, does so as an ‘able bodied’ athlete. The disability specific options offered in sport are often different. For example, triathlon is much shorter; in athletics not all events are offered; in cross country it is shorter; in swimming not all events are offered; and when offered they are separate and segregated with few athletes included. In many sports there are no disability options at all (netball, football, hockey—the list is long). People with disability are at times, excluded from sport both disability sport and mainstream sport, because providing the sport is considered to be too difficult. Adjustments in sport and sporting contests are NOT readily considered or made It is not necessarily known or understood that adjustments to sport may need to be made, to comply with the DDA or the CRPD. Put simply; offering a disability specific sport that is not comparable to the mainstream, is potentially discriminatory; not offering a sport that recognises a person’s disability is potentially discriminatory; ‘allowing’ a person to take part in a mainstream event without any recognition of a disability is potentially discriminatory. The way the DDA is drafted, does not make sense as far as sport is concerned. Studies by Jeanes et al, explain how sports providers continue to provide separate sporting opportunities for people with disability and remain rigid in sporting structures –often only those that align with competitive (Paralympic type) pathways, rather than being ‘inclusive’. They conclude, ‘w]hilst the advent of inclusion policies within sport is positive, far greater consideration needs to be given to what inclusion actually means in this context and what type of inclusion is being promoted and enacted.’ And ‘[g]reater consideration needs to be given to how a more transgressive or transformational approach could be achieved within the context of mainstream sporting environments, and to whether such a broad understanding of inclusion and inclusive practice is even feasible within the competitive confines of organised sport.’ Other studies have considered the views of both young people and the clinicians referring them to sport. Wright et al, tell us that, [T]he “lack of accessible and inclusive opportunities” was the most pertinent barrier for young people. Darcy et al identified numerous difficulties with ‘inclusion’, noting the evident exclusion of children with disabilities is often normalised by parents, coaches, and other sporting participants, indicating that sport participation is frequently constructed as exclusionary and

18 See for example, Queensland Representative School Sport Triathlon Competition Policies. 19 See for example, https://www.change.org/p/let-hugo-run-stop-the-ban-on-short-statured-athletes-running-cross-country- 1500m?source_location=search 20 See Ruth Jeanes, Ramón Spaaij, Jonathan Magee, Karen Farquharson, Sean Gorman & Dean Lusher (2018) ‘Yes we are inclusive’: Examining provision for young people with disabilities in community sport clubs, Sport Management Review, 21:1, 38-50, DOI: 10.1016/j.smr.2017.04.001. 21 Ibid, 49. 22 Ibid. 23 Barriers and facilitators to physical activity participation for children with physical disability: comparing and contrasting the views of children, young people, and their clinicians Annemarie Wright , Rachel Roberts , Grace Bowmana,and Angela Crettenden

Research into Disability Sport

The LAA ‘True Inclusion’ project, funded by the DSS (NDIS) to promote ‘True Inclusion’, found that children involved in Little Athletics found the structures and approaches in Little Athletics treated them differently and ‘less than’ the mainstream.”° The children and parents expressed a desire for better inclusion practices. Little Athletics implements the ‘multiclass’ and Paralympic pathway system— which fails to be inclusive, and it, and other structures do not provide children with comparable experiences to the mainstream.

There are no judicial decisions that deal with s28 of the DDA, and very few Human Rights Commission cases. What Human Rights Commission cases there are deal with exclusion from mainstream events on the basis of safety, and there is no guidance on other ‘exclusion’. Yet we know anecdotally that there are many situations where children with disability are not provided sport in a way that is comparable to the mainstream.”

Research into disability sport is also lacking, indicating a lack of attention to the issues of discrimination in disability sport. In 2022, 5.5 million Australians representing 21.4% of the population were identified as having a disability, with disability prevalence increasing across all age groups under 70 since 2018.”8 Among young people, 5.7% of those aged 0-4 and 13.5% of those aged 5-14 reported as having a disability.°? The data regarding participation in sport for these groups is scant. The research into people’s experience in sport, when they have a disability is scant. The AUSPLAY data collected by Australian Sports Commission collects some data, however, there is no data about children with disability taking part in sport. Only about adults.*” The data is also not specific about sport, competition, or treatment in sport.

The attention paid to the exclusionary structures that limit opportunities in sport is concerning. The ASC sub-committee of the Committee of Australian Sport and Recreation Officials (CASRO),‘’ researches the issues of disability sport. The data does not provide adequate information regarding the experiences of people with disability in sport to assist in the development of sport for people with disability. In short—the perspective applied is about taking part in ‘events they enjoy’, rather than an experience in sport. The Nationally Consistent Collection of Data,’ who “collect data about school students with disabilities who are receiving adjustments across Australia”, to “review schools’ processes and practices,” and to “record the adjustments already undertaken in schools to support students with disability to access and participate in education on the same basis as their peers”, does not collect data

4 Darcy, S., Ollerton, J., & Faulkner, S. (2020). “Why can’t I play?”: Transdisciplinary learnings for children with disability’s sport participation. Social Inclusion, 8(3), 209-223. https://doi.org/10.17645/si.v8i3.2750

°5 Darcy, S., Lock, D., & Taylor, T. (2016). Enabling Inclusive Sport Participation: Effects of Disability and Support Needs on Constraints to Sport Participation. Leisure Sciences, 39(1), 20-41. https://doi.org/10.1080/01490400.2016.1151842

6 See https://scholar.google.com.au/citations?view_op=list_works&hl=en&hl=en&user=KENp bgAAAAJ&sortby=pubdate

27 See for example, Hugo Hannan, https://www.change.org/p/let-hugo-run-stop-the-ban-on-short-statured-athletes-running-cross-country- 1500m?source_location=search ; Juju, https://www.change.org/p/let-juju-run-at-the-australian-athletics-open-nationals ; Charlie, https:/Awww.facebook.com/watch/?v=1892702554855646 ; Report to Members Little Athletics, https://scholar.google.com.au/citations?view_op=list_works&hl=en&hl=en&user=KENp bgAAAAJ&sortby=pubdate

°8 Australian Bureau of Statistics 2022, Disability, Ageing and Carers, Australia: Summary of Findings, ABS, viewed 27 October 2025, <https://www.abs. gov.au/statistics/health/disability/disability-ageing-and-carers-australia-summary-findings/latest-release>.

Tid.

30 https://www.ausport.gov.au/clearinghouse/evidence/persons-with-disability-and-sport.

3! The CASRO Research Group (CRG) consists of representatives from each of the following, Department of Health, Australian Sports Commission, and State and Territory Departments of Sport and Recreation. The CRG’s role is ‘to improve the range and quality of information about sport and recreation including data and research on physical activity trends, sport and recreation participation, economic impacts and social benefits.’ (https://www.ausport.gov.au/integrity_in_sport/inclusive-sport/evidence-and-resources/research.).

https://www.nccd.edu.au/

about the experiences of children with disability in schools in sport, yet they are to. 33 The National Data Asset34 does not contemplate sport. The current data about people with disability in sport does not assist with information such as;

how many people with disability take part in sport,
numbers of children with disability taking part in sport,
whether the sport involved a contest, and if that contest was appropriate for their disability,
whether they take part in competitive sport, or simply recreational—and why,
how they felt about the sport they take part in,
whether they would take part in more sport if it were structured in particular ways;
what school sport is provided for children with disability and how that is structured, or
the ways people with disability are ‘included’ in sport. Research is often focussed on ‘barriers’ that are physical or financial and does not deal with structures of sport and/or attitudes. The wealth of current research considers provision of separate and segregated sport, and how to have people with disability take part in sport, from a medical model approach. For example, considering what people with disability ‘can do’, and teaching and upskilling—instead of considering a social model approach of adjusting traditional sporting structures, including changing the structures of sporting regimes and contests. The current approach to sport in Australia, for people with disability, is potentially condescending and patronising. Even when research is undertaken, it is often from the health sector, with a focus on ‘improving’ the person with disability. There is little understanding that current structures of sport are prohibitive, segregating, and discriminatory; and that people with disability have a far lesser experience in relation to accessing and competing in sport than mainstream. The DDA and Sport The provisions of the DDA regarding sport require amendment, to clarify the obligations on sporting providers, including schools, and to provide better access to competitive sporting opportunities for people with disability—rectifying current discriminatory structures. Neglecting attention to the sections of the DDA that relate to sport risks continued confusion in what the sections mean, confusion in the application of any amendments to the sections relating to sport ( s28 and s45), a failure of the DDA to protect people with disability from discrimination in sport, and a failure of the DDA to promote the true inclusion of people with disability in sport. Conversely and importantly, the law can influence and enhance the efforts to improve ‘inclusion’ for people with disability, in providing for conduct that provides appropriate sporting opportunities. The relevant sections of the DDA The DDA currently provides in relation to sport the following: DISABILITY DISCRIMINATION ACT 1992 - SECT 28 Sport (1) It is unlawful for a person to discriminate against another person on the ground of the other person’s disability by excluding that other person from a sporting activity.

33 Ibid. 34 https://www.ndda.gov.au/

(2) In subsection (1), a reference to a sporting activity includes a reference to an administrative or coaching activity in relation to any sport.

(3) Subsection (1) does not render unlawful discrimination against a person:

(a) if the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity; or
(b) if the persons who participate or are to participate in the sporting activities are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other; or
(c) if a sporting activity is conducted only for persons who have a particular disability and the first - mentioned person does not have that disability.

As with all areas of disability discrimination, Sections 5 and 6 of the DDA also apply, as they are the sections that outline what discrimination is. In short, in its current form, treating a person less favourably than a person without disability, or leaving the person with disability at a disadvantage because of requirements or conditions they cannot meet—because of the disability is discriminatory; and a failure to provide a ‘reasonable adjustment’ is discriminatory, if it leaves the person with disability treated less favourably,³⁵ or at a disadvantage because of a requirement or condition.³⁶ Section 4 defines reasonable adjustment: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person. Section 11 outlines the matters to be considered regarding unjustifiable hardship. Each of sections 5 and 6, and it seems s 11, are being considered for amendment, and are the subject of recommendations by the DRC.

There are other parts of the DDA and the legislative framework that are relevant to the treatment of people with disability in sport. The Disability Standards for Education 2005 (DSE) implement the DDA. The Disability Standards for Education are silent on sport. At 5.3, they do say the following:

Measures that the education provider may implement to enable the student to participate in the course or program for which the student is enrolled and use the facilities and services provided by it on the same basis as a student without a disability, include measures ensuring that:

(f) any activities that are not conducted in classrooms and associated extra-curricular activities or activities that are part of the broader educational program, are designed to include the student.

Additionally, s 45 of the DDA provides for Exemptions (ie. Special Measures) from conduct being considered unlawful, in certain circumstances, although potentially discriminatory.

The provisions of the DDA that apply to sport are unclear and do not promote the appropriate inclusion of people with disability in sport and recreation. Strengthening the sections of the DDA as they apply to sport and recreation, can only improve the way people with disability are provided opportunities. Moreso, there is a risk that failing to address these sections regarding sport leaves people with disability without recourse regarding discrimination in sport and enables continuing discriminatory practices— that require attention.

³⁵ s5, DDA. ³⁶ s6, DDA.

The Convention for the Rights of Persons with Disability (CRPD) and the DDA for Sport

One of the prominent reasons that the DDA requires amendments in relation to sport, is because the DDA does not reflect the Convention on the Rights of Persons with Disabilities (CRPD). With the DRC and the RIP considering reference to the CRPD in the DDA, the way the CRPD refers to sport is relevant to amendments.

The provisions of the DDA do not reflect the provisions of the CRPD in so far as sport is concerned.

The CRPD provides for sport in Art 30.5.

With a view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities, States Parties shall take appropriate measures:

(a) To encourage and promote the participation, to the fullest extent possible, of
  persons with disabilities in mainstream sporting activities at all levels;
(b) To ensure that persons with disabilities have an opportunity to organize, develop
    and participate in disability-specific sporting and recreational activities and, to this
    end, encourage the provision, on an equal basis with others, of appropriate instruction,
     training and resources;
(c) To ensure that persons with disabilities have access to sporting, recreational and
     tourism venues;
(d) To ensure that children with disabilities have equal access with other children to
    participation in play, recreation and leisure and sporting activities, including those
    activities in the school system;
(e) To ensure that persons with disabilities have access to services from those involved
   in the organization of recreational, tourism, leisure and sporting activities.

The problems/consequences of the current DDA for sport

The way section 28 of the DDA operates means that ‘discriminating’ in sport requires ‘exclusion’ from a sporting activity.37 ‘Exclusion’ from a sporting activity is not easily understood. Is this exclusion from the physical activity, exclusion from the mainstream event, exclusion from one event at a carnival (but provided others), excluded from award ceremonies, excluded from a contest that is fair and meaningful? Is the ‘exclusion’ from the sporting activity to be considered before or after an adjustment is made in accordance with ss 5 or 6? What adjustments to the sporting activity are required to satisfy ss 5 and or 6? Can the person be ‘included’ in the physical event, but treated less favourably, and/ or disadvantaged? So, for example, the child can ‘play’ soccer with the team but stands on the field and is not passed the ball, or is sat on the bench more than others, but they are not technically ‘excluded’, so it is not unlawful in terms of s 28(3). Or would/could that be exclusion from a fair and meaningful contest? Is a contest, or the contest element, a ‘sporting activity’?

The ‘exception’ in 28(3) is that if the ‘person is not reasonably capable of undertaking the activities reasonably required for the sporting activity’, they can be lawfully excluded. What is reasonable

37 s28(3), DDA.

capability? Who determines that? What is the sporting activity? Is the sporting activity a contest? So, if you are not reasonably capable of competing, pursuant to s 28, you can be excluded? By way of example, if you are not ‘reasonably capable’ of playing netball, it is lawful to exclude you from netball? It is not clear that there is a requirement to make any adjustment to the sport to account for a person’s disability. They can simply be excluded for not being reasonably capable. The reasonable capability is not specified as relating to the person’s impairment or disability. Note here, people without disability are able to be excluded from sport because they are not ‘reasonably capable’.

Discussion about s 28 and ss 5 and 6 The way section 28 of the DDA operates is difficult to navigate. Working through the parts of s 28 demonstrates the complexity, and perhaps the section’s futility. There are few AHRC complaints or decisions around s 28, which in part might be because the section is very difficult to understand. It is my submission that the section was drafted with a limited understanding about experience in sport, and with a focus on participation, without any appreciation for sport involving a competition. It was also drafted prior to the amendments that introduced reasonable adjustments to the DDA (in 2009), so s28 does not contemplate the interaction between the sections.

Section 28 provides that it is unlawful to discriminate by excluding a person with a disability from a sporting activity. Section 28 does not explain what would constitute discrimination, other than ‘by excluding a person with disability from a sporting activity’. However, when applying s 28, and determining if discrimination has occurred, it is necessary to consider the meaning of discrimination within the DDA, namely in ss 5 and 6.

1 Direct Discrimination—s 5.

Direct discrimination of a person with disability in a sporting activity will occur when they are treated less favourably than a person without disability would be in circumstances that are not materially different, because of their disability. We know that this section might not necessarily work for a person with disability, as reflected in the DRC findings. When read together with s 28, it seems that a person with disability is not to be discriminated against—treated less favourably than a person without disability —by being ‘excluded from a sporting activity’, and this will only apply if they are ‘reasonably capable of the activities reasonably required for the activities of the sport’. As will become evident from my discussion in the passages below, s 5 and s 28 are very complicated, and do not necessarily assist in a person with disability being ‘included’ in sport. In short, the issues are;

What does ‘excluded’ mean? Is this excluded from a physical activity, or is this exclusion from a contest?
What is a sporting activity?
What does ‘not reasonably capable of performing the actions reasonably required for the sporting activity’, mean?
Is there a duty to make reasonable adjustments to the sport before the assessment of reasonable capability? Or at all?
What are reasonable adjustments to sport?

Being excluded from a sporting activity does not simply mean not being ‘allowed’ to join in. If a person without disability has a fair and meaningful contest or event, should a person with disability have the same opportunity?

38 Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247 [11] (Bromberg J). 39 s5(2) DDA.

Indirect Discrimination—s6.

Indirect discrimination means applying the same conditions or requirements to all, and the person with disability being left at a disadvantage, because they cannot comply. In sport, indirect discrimination, as set out in s 6, means a requirement or condition that might leave a person at a disadvantage could be rules of the sport that presume capability or ‘ableness’. Put simply, taking part in the sport requires that a person can comply with all the rules and requirements of the game, as designed. Sport is designed to create a fair and meaningful contest. The rules and requirements will leave a person, who (for example) does not have a forearm, at a disadvantage in the contest. The rules of traditional sport are not designed to contemplate impairment that affects the conduct of the sport. Is the failure to contemplate the disadvantage the person might be at in the contest, indirect discrimination? So, does s 6 and s 28 mean that it is unlawful to leave the person with disability at disadvantage because of conditions being applied, and not making a reasonable adjustment—thereby ‘excluding’ the person from a (fair and meaningful) contest?

Currently pursuant to section 6, there might be no discrimination, even though the person is at a disadvantage, because it is a ‘reasonable condition or requirement’. So a person can be excluded from sport altogether and not provided any opportunity. Additionally, it might be claimed that the person is permitted to play the sport, even though the rules leave them at a disadvantage, so they may not be excluded—so therefore not unlawfully discriminated against, according to s28. Yet they are at a disadvantage. A disadvantage in the contest. They are not ‘included’ in the same way as others.

Then pursuant to s 6, is separate disability sport a ‘reasonable adjustment’? Does this mean disability sport must be on offer, and does it need to be comparable to the mainstream? Where the separate disability sport means racing in an event on their own, or racing in shorter or lesser events, are those events a reasonable adjustment? Or is the separate offering treatment that is ‘different’ on the basis of disability and not a meaningful activity. Does the defence of unjustifiable hardship apply? Should there be an excuse or defence of unjustifiable hardship, if it leaves people with disability without a sporting experience?

The duty to make reasonable adjustments

s28 was included in the DDA prior to the ‘reasonable adjustment’ amendments and prior to the introduction of the CRPD. There has been no judicial or legislative consideration of the effects of either change, on the terms and application of s28.

The way sporting organisations at varying levels operate, it is not evident that the DDA and its provisions regarding sport have any impact on the conduct of sport for people with disability. There is also little or no consideration or application of ‘reasonable adjustments’ to school sport.

What adjustments are required when a person with disability seeks to play in a mainstream team, or compete in a mainstream event? 40

Reasonable adjustments are changes to the socially constructed environment, that address the disadvantage experienced by a person with disability.41 A socially constructed environment is not only the physical structures, but includes rules, laws, policies, practices and attitudes. The DDA does not make that clear.

40 Peter FitzSimons, Rethink needed on junior football club’s opposition to Marc Reichler-Stillhard, The Sydney Morning Herald, August 18, 2017. https://www.smh.com.au/sport/peter-fitzsimons-a-rethink-needed-on-barred-down-syndrome-boy-20170818-gxz8u3.html, accessed 5 September 2025. 41 UN Secretariat, Reasonable Accommodation Guidelines, May 2023, 21. https://policy.un.org/sites/default/files/2023-12/reasonableaccommodationsguidelinesenglish.pdfaccessed24October2025.

What is a sporting activity?

To discriminate, under section 28 of the DDA, a person with a disability needs to be ‘excluded from a sporting activity’. This provision creates confusion and complexity. There is no judicial guidance about what a ’sporting activity’ might be. Is a sporting activity a physical activity? Or is it the sporting activity being enjoyed by the mainstream? Is the contest in sport a sporting activity?

Sport has many elements including physical activity, compliance with rules and regulations, use of skills and an outcome.⁴² Sport also includes competition or contest.⁴³ Sport is different from leisure or recreation, as is noted in the CRPD.⁴⁴ A contest or competition is present at all levels of sport. There is no such thing as a non-competitive sporting activity. A contest does not have to be even, nor competitors ‘competitive’, for it to be a contest. Even backyard cricket involves a contest. Of course, a ‘come and try’ skills day, does not involve a contest.

Not reasonably capable of performing the actions reasonably required for the sporting activity

Section 28(3) permits a person (or organisation) to exclude a person with a disability from a sporting activity if they are not reasonably capable of undertaking the tasks reasonably required in the sport. The meaning of ‘reasonably capable’ in s 28(3) is subjective and unclear. There is no case law that assists.

If a person is not ‘reasonably capable’ of undertaking the actions reasonably required for the sport, s 28(3) could mean there is no obligation on a sports provider to make reasonable adjustments pursuant to ss 5 and 6 of the DDA to include them in the sporting activity. However, it may be that the requirement to make reasonable adjustments is required before the assessment of reasonable capability of the actions reasonably required for the sporting activity. What if a person is reasonably capable of the actions reasonably required for the sporting activity, once an adjustment is made?

Section 28 may be interpreted to mean that if, with ‘reasonable adjustment’, a person is reasonably capable of undertaking the required actions, then the adjustment must be made to prevent discrimination?

However, if a person with disability needs to be reasonably capable of competing, then the law permits their exclusion, if they cannot reasonably capably ‘compete’ in the sporting activity. It may be that a reasonable adjustment needs to be made to the sporting contest to provide the person the opportunity of being reasonably capable of competing, before the assessment of whether they are not reasonably capable, and then potentially excluded from the contest.

If, however, there is no requirement for a reasonable adjustment to be made before the assessment of reasonable capability of the reasonable actions for the sport, there may be no requirement for an adjustment to be made for a person with a disability in any circumstances in sport—because they will not be able to compete in a reasonably capable manner and can be excluded. If they can be excluded because they are not reasonably capable of competing, then on any assessment a person with disability will be excluded as soon as they are not reasonably capable of competing. If they are reasonably capable of competing there might be little need for an adjustment to provide them a fair and meaningful contest, and in no circumstances in sport is such an adjustment made.

⁴² For a discussion on the elements of sport see Bernard Suits, (2013) The elements of sport. In Jason Holt (ed.), Philosophy of Sport: Core Readings. Peterborough, Ontario, Canada: Broadview Press; Hemmingsen, Michael. “Towards a value-neutral definition of sport.” Sport, Ethics and Philosophy (2023): 1-16. ⁴³ For a discussion of fair and meaningful competition in sport see Jon Pike, ‘Why ‘Meaningful Competition’ is not fair competition’ (2023) 50(1) Journal of the Philosophy of Sport 1; Loland, S., 2013. Fair play in sport: A moral norm system. Routledge. ⁴⁴ Article 30, CRPD (n2).

The Practical Impact of the Current DDA and s28

There is little doubt that s28 is not helpful, does not easily contemplate or interact with ss 5(2) and 6 (2). The DDA appears not to promote inclusion for people with disability in sport and potentially excuses exclusion of a person with a disability from sport without any reference to adjustments. Section 28(3) differentiates the treatment of sport from other areas of society where discrimination is protected, and adjustments are provided. It does not appear to be that there are positive obligations to strive for effective, meaningful or rewarding inclusion for all, and opportunity and fairness in participation and the contest. The consequences of these problems are that the DDA is ineffective in providing people with disability a recourse for being included in a sporting activity, in a way that is fair and meaningful.

Consider the school system. Students are provided opportunities to take part in sport. All students have exposure to at least a cross country, athletics day and swimming carnival. There are many more sporting opportunities provided through the school system. Claimed to provide ‘Education through Sport’, School Sport Australia lists 19 sports on their website, as having National Events. Only four sports have National Sporting opportunity for some students with disability. The SSA sports offered for children with disability influence the sports offered at the lower levels—from school, through Districts, Zone, Regional, and State. There is clearly a deficit in sporting opportunities that are competitive for children with disability. This is not necessarily captured by the current DDA.

Disability Standards for Education (DSE)

The DSE are silent on the requirements for non-discrimination in sport. The DSE do provide for ‘(f) any activities that are not conducted in classrooms and associated extra-curricular activities or activities that are part of the broader educational program, are designed to include the student.’ There is no indication about whether this provision includes sport; however, there is a good argument that it does.

In my view—it should. The DSE is not satisfactorily drafted to reflect obligations in the DDA as far as sport is concerned.

The relationship between the DSE and the DDA is not clear when it comes to sport, and what is required in school sport. The DDA and DSE do not adequately provide people with disability the opportunity to have fair and meaningful sporting experiences comparable to the mainstream. Yet, they could with some amendments to the DDA.

There is support for the position that the DDA and DSE should provide for sport to be made available for people with disability, with adjustments, and in ways not currently contemplated. One place that support is found is in the CRPD.

Complaints

The Australian Human Rights Commission (‘AHRC’) received 1,165 complaints in 2023-2024 under the Disability Discrimination Act 1992 (Cth),45 yet only five complaints involved sport.46 There is no indication of complaints relating to provision of fair and meaningful opportunities. This raises the question: why are there so few complaints regarding sport, when it is known that children with disability have difficulty accessing sport, and are not provided with as many opportunities that the mainstream are?47

45 Australian Human Rights Commission. (2024). Complaint Statistics 2023-24. https://humanrights.gov.au/sites/default/files/document/publication/ar 2023-24 complaint stats tables 1.docx 46 None of which are accessible for review due to privacy protections. 47 Pearce, S., Sanderson, J. A sporting chance: the (dis)advantage of disability, and the need for a fair and meaningful contest. Int Sports Law J (2025). https://doi.org/10.1007/s40318-025-00304-0; Pearce, S., Sanderson, J. The myth of a “human right to sport”: how human rights can lead to true inclusion for children with disability. Int Sports Law J 24, 223–246 (2024). https://doi.org/10.1007/s40318-024-00275-8; Pearce, S., & Moritz, D. (2019). #whataboutme: Can the inclusion of gender diverse children pave the way for children with disability in sport? Australian and New Zealand Sports Law Journal, 13(1), 155–182. https://search.informit.org/doi/10.3316/informit.752418030538165.

The low number of complaints suggests deeper systemic issues. The AHRC’s complaints process is complex and often inaccessible without legal representation or a comprehensive understanding of relevant legislation. Schools may lack awareness regarding what constitutes discrimination within the context of sport. If compliance with the DSE are any indication, this is highly likely. Additionally, families may not be informed about their rights or how to navigate a grievance process. These barriers suggest that while formal complaint avenues exist to challenge exclusion, they are largely inaccessible in practice. As identified by the DRC in other areas of society, the complaints driven system of the DDA means that people with disability seeking rectification have limited recourse. Take the example of Hugo Hannan, who is one athlete asking for the opportunity to run a competitive cross country, which has been denied for two years at every level of the sport.⁴⁸ Australian Athletics (AA) justify this exclusion. The only recourse is to bring a complaint. That is cumbersome and prohibitive. When Aus Swimming are asked why there is no multiclass 800 or 1500m freestyle, they answer that it is because there is no international pathway.⁴⁹ This cannot be an unjustifiable hardship. Yet, to try to rectify the problem would mean a complaint to the AHRC. Advocating with these sports has no effect.

The DDA and the CRPD for sport. The provisions of the DDA fail to implement Art 30.5. Put simply, the DDA does not provide as set out in the CRPD. Australia is required to take appropriate measures, ‘With a view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities…’ This should include measures;

‘(a) To encourage and promote the participation, to the fullest extent possible, of persons with
disabilities in mainstream sporting activities at all levels;

(d) To ensure that children with disabilities have equal access with other children to participation in play, recreation and leisure and sporting activities, including those activities in the school system; and (e) To ensure that persons with disabilities have access to services from those involved in the organization of recreational, tourism, leisure and sporting activities.’

The DDA does not do these things. There is little evidence to suggest any other ways the government is doing as Art 30.5 provides.

The current interpretation of s28, and ss 5 and 6 could arguably implement the provisions of Art 30.5 in (b) and (c). The provisions to make reasonable adjustments (to the infrastructure, to provide for access) and the Special Measures in s45, to ensure disability specific sports, and the provisions of s28 which provides for ‘sporting activity’ to include things like ‘instruction, training and resources’, all might satisfy the CRPD.

However, as explained above in relation to s 28, the DDA does not provide for people with disability to be provided comparable fair and meaningful contests in sport, there is no reference to mainstream activities, there is no reference to equal access to sport in the school system—the DSE makes little reference to sport, and does not explicitly provide for ‘equal access’ to school sport; and there is no reference to accessing services in sporting activities—particularly involving contests and the mainstream.

⁴⁸ https://manlyobserver.com.au/they-let-hugo-run-but-still-wont-let-him-compete/ ⁴⁹ A question I asked of them in writing with a written response.

Part II Amendments to the DDA; what they mean for Sport

The amendments being proposed to the DDA in the RIP, do not specifically refer to sport, or s28. However, the amendments being proposed by the Government will influence the operation of s28. There is also an opportunity to make amendments to s28 to clarify the operation of the DDA as far as sport is concerned, consistent with the recommendations of the DRC. In this part I will deal with the proposed Government amendments and how they will impact s28 and sport, before proposing amendments to s28 and the DDA to improve the provisions regarding sport, consistent with the intent of the DRC and the government. Responding to the questions in the RIP is difficult and complex. The sections of the DDA are interrelated and interdependent at times. One of the main challenges is having provisions that define discrimination and then separate provisions that attempt to make discrimination unlawful in certain contexts. Discrimination on the basis of disability should be unlawful in any context. I have answered the discrete questions from the RIP, as best I can, in some ways in the context of the impact on sport. Some issues I raise in the responses impact more than sport. Those matters might be helpful to other contexts, because discrimination should be unlawful in any context.

RIP Questions

Here, I attempt to respond to the questions posed in the RIP, as best I can without including the context from the RIP. To do so would make the submission far too cumbersome. However, these responses presume an intimate knowledge of the RIP.

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

As articulated in the RIP, the definition of disability should reflect a social model/human rights model/ transformative model of disability.

Considering the CRPD and the proposal to refer to the CRPD in the DDA, it is my submission that rather than the definitions of disability being considered, there is an opportunity to consider the following:

My Proposed change:

disability, in relation to a person, means:

A state of impaired physicality, functioning or capacity, which when considered in the context of the interaction between the person and society’s attitudinal and environmental barriers, hinders their full and effective participation in society on an equal basis with others.

This proposed definition relies on the CRPD⁵⁰ and the transformative, social or human rights model of disability. This definition is reflective of the types of definitions in the Disability Rights, Inclusion and Safeguarding Act 2024 (TAS) and Disability Inclusion Act 2024 (ACT), referred to in the RIP. It is necessary to refer to impairment, if the definition of disability refers to the social parameters that create barriers—which is a social model approach. ‘Disability’ is the interaction between impairment and social constructs. Otherwise, it is non sensical to define disability by reference to disability. The physical, cognitive and sensory impacts must be captured in the definition, along with social constructs.

⁵⁰ See Article 1, CRPD (n2).

2. What factors should be considered in developing a new definition of disability?

Factors in defining disability should be to consider:

Reducing a medical model approach.
Consistency with the CRPD; (e) Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others,
Social and transformative model of disability.
General Comment No.6 on equality and non-discrimination.
Avoiding negative connotations and deficit language.

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?

Language here is vital to the success of the legislation achieving the outcome of protection of people with disability, and the goals of the CRPD. There are things to be considered in the use of ‘unfavourable treatment’.

‘Unfavourable treatment’ could mean that the test applied relates to the treatment and not the outcome of that treatment. This might be appropriate, because unfavourable treatment may not cause detriment or disadvantage, but is still wrongful. It can also mean that the treatment itself might not be considered unfavourable but have an unfavourable impact.

Care should be taken in considering that if ‘unfavourable treatment’ is used in the definition. Consider, for example, a person is provided a multiclass sport opportunity, which is separate and segregated from the mainstream. That might be considered to be favourable to the person, as they are the only one in the competition, and will be successful in the race. Yet, the person might seek to be included in the mainstream and not be separated. So, proving the ‘unfavourable treatment’ will fall on the complainant.

This is not the intent of the CRPD.

Thought must be given to how ‘unfavourable’ will be defined. The Oxford Dictionary provides ‘likely to lead to an adverse outcome’. Adversity for the person, or persons with disability could be considered as the definition in the DDA.

There are still concerns with using terminology such as ‘unfavourable treatment’ or detriment. What is ‘unfavourable treatment’? Who says treatment unfavourable? Will it be an entirely subjective test, or some objective test included or imputed?

Whilst I support the concept and intent of the proposed change, because the comparator test is complex and difficult, it is worth considering the following:

a) The definition of Direct Discrimination in the CRPD was arrived at after considerable consultation and work.

a. Direct Discrimination

b) Discrimination on the basis of disability means treatment, including any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others.

i. There is some complexity in considering what an ‘equal basis with others’ means. However, there has been substantial literature from the UN regarding ‘equal’ being substantive, inclusive, or transformative equality.

51 Definition., CRPD, (n2).

ii. Whilst ‘equal basis with others’ might risk the ‘comparator’ issue arising, and there is criticism of the comparator approach, the concept is to reinforce the idea that people with disability should be treated as those without disability might be treated, but for their disability, as a starting point, with a provision for reasonable adjustments or accommodations to be made.

c) Detriment will need to be defined and may be a way to remove any reference to some objective comparison; see for example ‘detriment includes humiliation and denigration’;⁵² The detriment test might be appropriate, although, it should be remembered that someone can discriminate without there being a detriment; and proving detriment will need to be considered. What will be required to prove a detriment?

d) ‘Adverse action’ does not apply in a disability discrimination sense. Adverse action would require someone to take action to be discriminatory, which is not always the case. Failing to take action (make a reasonable adjustment) is often the problem as far as people with disability are concerned.

e) The use of language that relates to ‘disadvantage’ might be considered preferable, as is provided for in the definition of indirect discrimination. ‘Disadvantage’ is indicative of being treated in a manner that is undesirable and inappropriate. Disadvantage is defined as an unfavourable circumstance or condition that reduces the chances of success or effectiveness.⁵³ Preventing disadvantage forms part of the considerations for substantive equality,⁵⁴ on which the DRC based their recommendations.⁵⁵ The reasonable adjustments provisions were introduced in 2009 to address disadvantage. ⁵⁶ Using ‘disadvantage’ in the definition, would align ss5 and 6 of the DDA, reflect the approach of substantive equality,⁵⁷ and ensure that it is considered discriminatory to leave a person with disability at a disadvantage because of treatment relating to their disability.

a. Perhaps there is a concern that the action of discrimination might be unfavourable

treatment but not necessarily result in disadvantage. There is also a risk that disadvantage gives rise to a comparator—in that it is disadvantage compared to others; but this is not required.

f) The use of the term ‘disadvantage’ resolves the issue of what is ‘equal basis’ in the CRPD (and equality not being entirely understood), in that it can address the impact of the treatment and consider if the person with disability is at a disadvantage. One difficulty will be that a person with disability will have to establish the disadvantage.

g) Using the CRPD as a base, it might be helpful to consider the definition of discrimination.

i. ‘Discrimination on the basis of disability means treatment, including any

distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, of the experience of a person with disability or leaving them at a disadvantage. It includes all forms of discrimination, including denial of reasonable accommodation;’

b. Note, the CRPD provides "Reasonable accommodation" means necessary and

appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the

⁵² EQUAL OPPORTUNITY ACT 2010 (Vic)- SECT 4. ⁵³ Oxford Dictionary. ⁵⁴ See Sandra Fredman, Substantive equality revisited, International Journal of Constitutional Law, Volume 14, Issue 3, July 2016, Pages 712–738, https://doi.org/10.1093/icon/mow043. ⁵⁵ RIP(n1),50. ⁵⁶ Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth), pp 7–9 ⁵⁷(n54).

enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;⁵⁸

h) One of the confusing elements of direct discrimination, is the need to make (reasonable)
    adjustments. It is my submission that the CRPD reference to reasonable adjustments
   (accommodations) is done in a manner that is easy to understand. Whilst the issue of reasonable
    adjustments and a stand-alone duty is dealt with elsewhere, it is helpful to include the
    requirements for adjustment together with the definition of discrimination.

     6. How should the burden of proof be addressed in the Disability Discrimination Act?

The most appropriate approach to the onus (not burden—which refers to the standard) is to follow the lead in the Fair Work Act, which requires that the applicant has the onus of proving an action was taken, however, there is then a presumption against the respondent. To suggest that the ‘burden’ can be shifted by ‘, where the applicant must prove that the treatment occurred and the respondent must prove that the treatment was not on the basis of the person’s disability.’, is incomplete. With respect, there are many elements that need to be established by an application in a current claim for disability discrimination. The effect of the DDA currently is that an applicant must prove; 1. They have a disability; 2. That there has been certain treatment; 3. That the treatment is less favourable to a comparator; 4. That the treatment is because of disability; 5. That there could have been a reasonable adjustment; 6. That the reasonable adjustment was requested and refused or not made. The only way to reverse the onus successfully, is to introduce a presumption that the situation complained of is presumed to meet all the elements of discrimination ( whatever they are defined to be—which is impossible to address because it is under review) and the respondent must prove that they have taken the necessary steps to meet their ‘positive’ duty’ ( should that be introduced). For example, it should be presumed that the circumstances if the claimant are because of a person’s disability and presumed to be a ‘distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, and caused or created the disadvantage or detriment complained of; with the respondent required to prove that there was no distinction, exclusion or restriction, that it was not on the basis of disability and of no detriment. Such a reversal of onus gives effect to the CRPD, and the objects of the DDA, and the DRC recommendations to ensure discrimination for people with disability is understood and addressed. 7. How could the definition of indirect discrimination be amended to ensure that it is easy to understand and implement for people with disability and duty holders? The proposed definition of indirect discrimination should reframe the concept in clearer, more structured terms than is currently provided for. It should focus on the practical realities faced by people with disability and the responsibilities of duty holders. It should include reference to rules, criteria and policies. Rules, criteria and policies are socially constructed and can place a person with disability at a disadvantage. Rules, criteria and policies should be specified as being ‘requirements’. Rules, criteria or policies that might apply to a person with disability, might leave them at a disadvantage, because of their disability. These elements should be included in the socially constructed

⁵⁸ CRPD, (n2).

elements that are considered as disadvantaging the person with disability, to make it clear that rules, criteria and policies are socially constructed and can be changed. Reference to ‘condition, requirement or practice’ in the current definition is restrictive and open to arrow interpretation. ⁵⁹ It is also not necessarily clear what ‘being imposed’ means. Additionally, the condition, rule, criteria, policy or requirement being ‘reasonable’ should not be an excuse (as is currently the case). As identified by the RIP, the ‘reasonable’ element is duplicitous and estrictive. Assessing reasonable is currently subjective. Noting here also that the definition of indirect discrimination is still proposed to include ‘unjustifiable hardship’, and the ‘new’ definition of unjustifiable hardship would need to be considered in conjunction with an amended definition. ‘Reasonableness’ should be replaced by a test as to the necessity of the requirement, condition, rule or, criteria or policy, to preserve an inherent skill or element of an activity, or for safety. Using the example of sport, a rule of sport might leave a person with disability at a disadvantage in the contest. The person with disability is ‘required’ to attend and enjoy the contest, without provision for their disability. The rule would need to be adjusted to provide the person with disability a fair and meaningful contest. Providing the excuse that the rule is ‘reasonable’, enables a sport to simply say that they are the rules of the sport. That is discriminatory (pursuant to the CRPD). However, if the sport is an elite sport, it might be necessary to retain the rules, so as to retain the nature of the activity—an elite contest. The onus on proving the necessity of the rule or requirement would be on the duty holder, who otherwise has a duty to make adjustments for people with disability. It is my submission that the provision regarding indirect discrimination also include provision for ‘any person with disability’, so an action can be made on the basis of the structures in place, and not the actual experience of one person; and incorporating a positive duty. There is no need for language such as ‘‘does not or would not comply or is not able or would not be able to comply’’. The relief from disadvantage should be the focus. My Proposed definition

Indirect discrimination occurs (a) when the duty holder requires or proposes to require any person with disability, comply with or adhere to a requirement or condition, or be subjected to criteria, rules or policies, which would place them at a disadvantage; and (b) the disadvantage would be removed, only if the duty holder made (reasonable)⁶⁰ adjustments for persons with disability, but the duty holder does not do so or proposes not to do so; (e) unless the making of an adjustment causes an unjustifiable hardship, or the requirement or condition, or be subjected to criteria, rules or policies are necessary to preserve the safety or integrity of an activity or endeavour. 8. Should the reasonableness element in the definition of indirect discrimination be: a. removed b. retained and supplemented with a list of factors to consider c. replaced by a legitimate and proportionate test d. other Please expand on your response.

⁵⁹ See for example, Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council (‘Access For All Alliance’) ⁵⁹ interpreted the section as ‘persons are required to attend and enjoy’…without provision for their disability.⁵⁹

⁶⁰ Remove reasonable if removed from section 5.

9. Should the language of ‘does not or would not comply, or is not able or would not be able to comply’ be removed from the definition of indirect discrimination?

Yes. See explanation further above.

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

Including the CRPD in the objects of the DDA would have substantive and symbolic impact, and permit consideration of the terms of the CRPD in interpreting the DDA provisions. However, this is not sufficient, as the Objects can be narrowly interpreted by courts.

There is a risk that should be heeded when considering whether reference to the CRPD in the Objects will be sufficient. A recent example of the Parliament including in Objects of an Act reference to a United Nations Convention, is the Family Law Amendment Act 2024, that introduced reference to the Convention for the Rights of the Child in the Objects of the Family Law Act. Recently, in Radecki v Radecki,62 Justice Neville considered the High Court’s guidance on how courts should approach international instruments referenced in domestic legislation, commenting 63

Respectfully, “giving effect” to the Convention in question, as specified in s 60B, is as broad as it is unhelpful. What parts of the Convention…are intended to be given effect to? And, As the High Court’s comments indicate, the main task is to ascertain what the law in Australia is, in any event. 64

His Honour was referring to Justices Callinan, Heydon and Crennan:65

“…The first step is to ascertain, with precision, what the Australian law is, that is to say what and how much of an international instrument Australia law requires to be implemented, a process which will involve the ascertainment of the extent to which Australian law by constitutionally valid enactment adopts, qualifies or modifies the instrument. The subsequent step is the construction of so much only of the instrument, and any qualifications or modifications of it, as Australian law requires…”

Neville J went on to note that the matters he needed to consider were in the Act in any event and had always been, so reference to the CRC was ‘somewhat moot or perhaps…an exercise in legislative supererogation’.66

The way to ensure that the law is understood and adheres to the CRPD, is to implement the CRPD in the DDA.

61 See for example, Radecki v Radecki [2024] FedCFamC2F 811 [94]. 62 [2024] FedCFamC2F 811. 63 NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52; Radecki v Radecki [2024] FedCFamC2F 811 [93]. 64 Radecki v Radecki [2024] FedCFamC2F 811 [94]. 65 NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52, [61]. 66 (n64)

Reformatting of Source Page 20

It should be noted that the DRC recommendation goes further than simply including the reference in the Objects, and includes that the DDA include provisions stating that:

It is intended to give effect to Australia’s obligations under the Disabilities Convention. 🔴🔴 It must be interpreted in a way that is beneficial to people with disability, to the extent that it is possible to do so consistently with a number of international human rights law treaties, including the Disabilities Convention.

This is important and necessary to implement the obligations as a State Party, and to ensure the appropriate interpretation of the DDA. Whilst there are other laws that give the Objects such an effect, it should be explicit, so that the Act is clear and easily understood by all, including duty holders.⁶⁷

Amending the Objects section of the DDA to include reference to the CRPD, and Australia’s obligations to human rights, with the stated intent that it ‘could promote the interpretation of the Act in a way that is consistent with Australia’s obligations under the Disabilities Convention;’ would impact the sections of the DDA that relate to sport.

It would also guide the amendment of the sections relating to sport, to be consistent with not only the CRPD but the balance of the amendments being proposed in the Review. Art 30.5 of the CRPD will become a prominent and important reference point for the provisions in the Act relating to sport.

The DDA currently does not implement the CRPD as far as sport is concerned. Art 30.5 calls upon State Parties to take appropriate measures ‘With a view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities…’ and those measures include certain steps and/or actions.

If the Objects are amended in the way proposed, there should also be appropriate amendments to the DDA to reflect the CRPD, rather than simply leave it to interpretation. Sport is one example of the need to amend the DDA to be consistent with the CRPD. The confusing status of s28, and ss5 and 6, cannot be left to be interpreted through the CRPD. It will be far too complex.

The DDA does not currently align with the provisions of the CRPD that relate to sport. If the DDA is to align and implement the CRPD as far as sport is concerned, there are a number of factors that would need to be clear in the DDA when it comes to sport and non-discrimination. To enable the DDA to be interpreted consistently with the CRPD, s28 would need to be interpreted as promoting participation on an equal basis, ‘[t]o encourage and promote the participation, to the fullest extent possible, of persons with disabilities in mainstream sporting activities at all levels’; and ‘[t]o ensure that children with disabilities have equal access with other children to participation in play, recreation and leisure and sporting activities, including those activities in the school system.’⁶⁸ S28 cannot be interpreted in that way, on its current terms, and even if the CRPD is included in the Objects.

Additionally, s45 would be impacted by the CRPD, Art 30.5 (a) and (d). ‘Special measures’ which permit discrimination in certain circumstances would be subject to the scrutiny and application of Art30.5. That would mean that if special measures are being taken to ensure ‘equal opportunities’ or provide for ‘special needs’, and those steps are technically discriminatory, as far as sport is concerned, there would need to be some clarity around whether the provider has attempted to include the people with disability together with the mainstream, or on an equal basis in the school system. As sport is currently delivered in Australia, that is not evident to sports providers or schools, nor is it clear what would be required.

⁶⁷ The Acts Interpretation Act.

⁶⁸ Art 30.5 (a) and (d).

Current structures of sport for people with disability do not promote participation with the mainstream, or equal access to sport in the school system, particularly where competition is concerned. It is not commonly understood that the way sport is delivered for people with disability does not comply with Art30.5 and is potentially discriminatory. See The myth of a “human right to sport”: how human rights can lead to true inclusion for children with disability.

The amendment to the DDA to include reference to the CRPD would assist in this regard.

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?

Yes. Australia is a signatory to The Human Rights Treaties and Conventions and have agreed to do such things to comply and implement them. Requiring the Act to be interpreted in accordance with the human rights treaties, is appropriate, as it complies with Australia’s obligations.

It is my submission that there should be more than simply a reference to the DDA being interpreted in accordance with the Human Rights Treaties. The DDA should be amended to align and comply with Australia’s obligations under the Human Rights Treaties. It should be noted here that the DDA uses different language from the CRPD in places and the DDA will need to be aligned or the language use carefully defined or explained. Some of those issues are included in this submission.

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

There should be a positive duty and it should apply to all duty holders—all persons. Eliminating discrimination is the duty of all. There are circumstances outside of ‘employment’, where the treatment of people with disability is important, and non -discrimination and a positive duty to prevent and address or take reasonable and proportionate measures to eliminate disability discrimination, as far as possible, should apply.

A good example of this is in sport. With the current structures of sport, a positive duty should apply to all providers of sport, to take reasonable and proportionate measures to eliminate disability discrimination, as far as possible. Under the current DDA, what constitutes discrimination in sport is not clear. The experience of people with disability in sport, if affected by discrimination can detrimentally affect that experience, and deter them from taking part or being involved. Sport is important for health and wellbeing. People with disability should be treated with non-discrimination in all experiences in sport, as with work, or any other experience.

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?

Importantly, the positive duty in the DDA would and should be different from the Sex Discrimination Act. Fundamentally the reason for that difference is that disability discrimination includes (currently) reasonable adjustments. The CRPD provides that discrimination on the basis of disability includes failing to make reasonable accommodations. A positive duty in the DDA should incorporate a duty to make reasonable adjustments—so that this element of discrimination is clearly included in the positive duty. There should be incorporated into the positive duty, that the person with disability should not need to request the adjustments.

In my view, the law does currently provide for a positive duty but has been misunderstood.

The objects of the DDA, currently, are:

69 Simone Pearce and Jay Sanderson, The myth of a “human right to sport”: how human rights can lead to true inclusion for children with disability, The International Sports Law Journal, 2024, https://api.semanticscholar.org/CorpusID:271228259.

14. 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.

There will be considerable education required for duty holders to understand a positive duty, and what ‘reasonable adjustments’ or ‘adjustments’ are.

There will be considerable work required to have duty holders understand adjustments and to implement systems to identify (reasonable) adjustments that are required.

The positive duty provision however, will provide a cultural shift to the way people with disabilities are treated in Australia, and the benefit to community in such a shift outweighs the detriments.

Not only will we be ‘doing the right thing’, and complying with human rights, we will be ensuring every person has the opportunity to be part of society, and we will shift from an exclusionary society to a truly inclusive one.

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

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

Potentially. With respect, the Court in Watts v Australian Postal Corporation (2014) 222 FCR 220 [22], did not state that the drafting of the reasonable adjustment provisions ‘does not impose a duty to make a reasonable adjustment’. In Watts, J Mortimer agreed with the suggestion that there was a ‘positive

16. The Positive Duty

Duty to do something’.70 The complication or potential confusion from that was that the judge had to determine whether that act was in fact done or refused to be done.

The intent of the amendments requiring reasonable adjustments, was intended to be a positive duty to make the adjustments, and to suggest that there is not, or that otherwise applies is not correct. However, the sections of the Act could be clearer. And it is conceded that nationally and internationally, it has been accepted that a positive duty makes it clearer and direct that providers (employers, educators, and others) have an obligation to take reasonable steps to eliminate discrimination. In relation to Disability, there would be benefits in it becoming common place, and at least, understood, that (reasonable) adjustments must be made—and what they are.

If a person with disability is at a disadvantage, detriment, or has difficulty in the context of the interaction between the person and the attitudinal and environmental barriers relating to their disability, that hinders their full and effective participation in society, then adjustments to the requirements, structures, rules, policies, or activity will be required to remove the disadvantage, detriment or has difficulty.

The positive duty proposed to be framed in legislation goes no further than the current DDA drafting. Failing to provide the adjustment and meet the duty will be unlawfully discriminatory.

The great benefit in a positive duty, stand-alone obligations to make adjustments and the proposed amendments, is the amendment to enable the AHRC to enforce the law.

17. Scope of the Duty to Provide Adjustments

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

The duty should be broad, apply to all persons, and extend to all contexts.

There is no place, or basis where a person with disability should not enjoy an adjustment for them to have full and effective participation in society.

18. Removing the Word ‘Reasonable’

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

Reasonable adjustment is defined in the DDA currently, in section 4, as ‘reasonable adjustment: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.’ Mortimer J in Watts correctly considered that

The somewhat absolute nature of the definition of reasonable adjustment has tangible consequences for potential discriminators. There is no room in the operation of s 5(2) for a discriminator, or a Court, to assess conduct, or modifications, by reference to notions of reasonableness. The statute removes that capacity. Unless a modification involves unjustifiable hardship, it will by operation of s 4 be a reasonable adjustment and the discriminator must make it “for” the person, to avoid the consequences s 5(2) (read with other provisions in the DDA) might otherwise impose. The legislative choice about what is “unreasonable” for the purposes of this scheme is expressed in the inherent requirements exception, and in the concept of unjustifiable hardship. I deal with these provisions in more detail at [35] and [57] below. One consequence is that what constitutes “hardship” and the circumstances in which it might be “unjustifiable” may be broader than if the statute used reasonableness as a criterion of liability.71

70 Watts v Australian Postal Corporation (2014) 222 FCR 220 [22], at [232]. 71 Ibid.

Because the definition of ‘reasonable adjustment’ says; ‘reasonable adjustment: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person’’; the meaning of unjustifiable hardship becomes relevant. Unjustifiable Hardship is specified as an ‘exception’ to discriminating.

21B Exception—unjustifiable hardship

This Division does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.

29A Unjustifiable hardship

This Division (other than section 30) does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.

11 Unjustifiable hardship

(1) For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

(a) the nature of the benefit or detriment likely to accrue to, or to be suffered
by, any person concerned;
(b) the effect of the disability of any person concerned;
(c) the financial circumstances, and the estimated amount of expenditure
required to be made, by the first person;
(d) the availability of financial and other assistance to the first person;
(e) any relevant action plans given to the Commission under section 64.

Removing ‘reasonable’, could create some unintended consequences and will need careful consideration. If ‘reasonable’ is removed, ‘Adjustment’ still needs to be defined. And it will need to refer to or connect with the unjustifiable hardship (or undue and disproportionate burden—CRPD) tests. So, does an ‘adjustment’ mean making a change that does not cause an unjustifiable hardship? Would this mean any change—adjustment—could be required or expected? How far might the adjustment have to go in removing disadvantage or unfavourable treatment? There may be a need to maintain the integrity of the event, activity or endeavour, when making the adjustment; and the significance of the event might be relevant. The ‘adjustment’ would need to somehow consider that situation.

Removing ‘reasonable’ from the requirement to make an adjustment and amending the definition of ‘reasonable adjustment’ to simply be an ‘adjustment’ would have the following consequences:

72 S4, DDA. 73 See Pearce and Sanderson, (n47).

Source Page 25

No longer reflect the language in the CRPD. (see definition of discrimination, which includes ‘reasonable accommodations) 2. Requires an amendment to the definition of ‘reasonable adjustment’ in the DDA. The definition would need to be removed, and a new definition of ‘adjustment’ considered. 3. On the ‘usual’ or ‘common’ use of the word ‘adjustment’, an adjustment could be any change to any facet of the person with disability’s circumstances, that leave the person treated ‘less favourably’ or at a disadvantage’ (ss5 and 6)…because of their disability. So, the adjustment would need to be to some facet that relates to disadvantage or less/unfavourable treatment that arises from the disability. 4. If the ‘unjustifiable hardship’ exception remains (ss21B and 29D), and the definition of unjustifiable hardship remains unchanged, that would leave the person required to make the ‘adjustment’ able to avoid making that ‘adjustment’ based on the ‘effect on any person concerned’. (s11(1)(a). This requires consideration and amendment. 5. In terms of s 28 of the DDA, the requirement to make an adjustment must be directly linked to the requirements in the section not to discriminate. S28 does not make sense otherwise. See above, earlier in this submission.

There is an opportunity to redraft the DDA to be clear and explicit about the adjustment being required. For example, to make it clear that the adjustment is required to provide the person with disability an experience that removes disadvantage. The legislation should be clear that any adjustment is to address ‘less favourable’ or ‘unfavourable’ treatment and correlates to other amendments being proposed (if made) to unjustifiable hardship. It should be clear that the unfavourable treatment or disadvantage can be because of the disability and the interaction/intersection with rules, structures, policies and practices—not simply physical environments and not simply to provide token ‘access’; so adjustments might be required to rules, criteria and policies.

Sport and education provide examples of the complexities of the requirement for adjustments, and the intersection with the experience people with disability have with the social structures, that need to be clearly understood in the legislation. Each of these experiences include a contest, or competitive or judgement element. When an experience involves a contest, competitive element or judgement, the adjustment required will include an adjustment to the elements of the contest. Sport is the best example of this, however, there are many areas of life and society where judgment and competition are prevalent, such as education, creative industries. Sporting contests do provide an example for the remainder of society, about the impact of contests, and adjustments to contests to properly include people with disability. This lens applied to the definitions and operative discrimination sections can be helpful. Because, if we can make adjustments to include people in the contest, we can understand the social constructs that disadvantage people with disability.

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.

To be consistent with the CRPD—it would be undue and disproportionate burden. If the DDA is said to be implementing the CRPD, there is merit in considering consistency. Simply adding the provisions recommended by the DRC, is not sufficient. There is still a complaint driven mechanism, and an escape route for making adjustments.

Currently ‘unjustifiable’ connotes that someone justifies the hardship caused by the steps required to prevent the discrimination—and that may shift the onus to the complainant—the person with disability. Or that the discrimination is permitted because someone can establish a hardship caused, that is ‘not justifiable’. That currently it is not clear that there would be any balance with the circumstances of the person with disability.

To be consistent with the CRPD, and the intent of the amendments being proposed by the DRC Recommendations, there should be an amendment to the unjustifiable hardship provisions. In the CRPD, ‘Undue burden‘ are those accommodation requests that, if granted, will have substantial financial or administrative implications for the Organization.’74 The new definition proposed has merit—in that it considers a weighing of benefits, and reflects a proportionate consideration as is indicated in the CRPD. However, there is room for argument that the benefit to the ‘person’ has to also include a benefit to the community. These ‘benefits’ would give rise to arguments. For example, what is the benefit? Does it need to relate to the disability? Can it be more than one benefit? Does it need to be significant or ‘dominant’ as is often referred to judicially? There is a benefit to the community in adjustments being made for people with disability. Organisations being left to make the assessment of hardship and benefits is problematic. It permits unilateral assessments of what it a ‘benefit’ and to whom. The ‘defence’ of unjustifiable hardship’ should be amended to reflect the intent of the Royal Commission; to provide a more effective and successful DDA that provides for people with disability to be treated in accordance with their human rights of non-discrimination—and the CRPD. If the intent is to prioritise the treatment of people with disability, the hardship or burden needs to be significant to outweigh the adjustments and the non-discrimination. Proposed unjustifiable hardship definition An example of how unjustifiable hardship (or undue and disproportionate burden) might be defined;

An unjustifiable hardship is one that, directly related to the provision of adjustments for a person with disability, has substantial financial or administrative implications for the provider, disproportionate with the benefit to the person with disability, and the benefit to the community at large, by having the person with disability provided for. When considering disproportionate hardship and benefit, the starting point is that the person with disability is to be provided the adjustment or non-discrimination….. and only when that cannot be done without substantial financial costs that cannot be met, will it be not required. There are some important matters that need to be considered, if the decision is to proceed with the definition of unjustifiable hardship proposed by the RIP, and proceed with The DRC’s recommendation: ‘Include additional factors that must be taken into account:
consultation with any person with disability concerned
consideration of available alternative measures to eliminate or reduce hardship.
Respondents are to document factors they considered in assessing hardship.’

It is my submission that there are issues with the recommendation by the DRC as follows:

Consulting with a person with disability will not be helpful or potentially effective if the person is under 18 years of age and/or has a cognitive impairment, or speech and language impairment, or other communication difficulty. This requirement should include parents or caregivers, and adjustments made for the communication to ensure that the person is considered and understood.

74 UN Secretariat, Reasonable Accommodation Guidelines, May 2023, 21. https://policy.un.org/sites/default/files/2023-12/reasonableaccommodationsguidelinesenglish.pdfaccessed24October2025.

Source Page 27

The assessment of the ‘hardship’ and the alternative measures is a matter for the duty holder. This is not consistent with the intentions of the Act or amendments. 3. What is the penalty for not documenting the factors considered in assessing hardship? And should this documenting also apply to alternatives considered to ‘reduce hardship’. 4. The alternative measures are considered to ‘reduce hardship’ and not alternatives to reducing the discrimination, which should be the priority. 5. A potential additional step or approach in the legislation would be for the requirement of proving the unjustifiable hardship to be the subject of an application to be granted the exception/exemption. So, the adjustment must be made, unless the person to give the adjustment can prove, and have sanctioned by the AHRC, that making the adjustment would be an unjustifiable hardship—in accordance with the factors in the Act. This process is consistent with the current ‘exemption’ process in the Act for a variety of measures. This is consistent with the ‘enforcement model’ proposed by the Commission in relation to Positive Duties. The process also deals with the difficulty raised in the Commission and by others (academics) that the complaint-based system for discrimination is prohibitive. Currently, the self-assertion that there is an unjustifiable hardship leaves it to the person aggrieved to complain. This is prohibitive for a person with disability and permits discrimination to occur—either because it goes unchallenged or until the decision is made, that the adjustment is not available.
```
 34. Should the Australian Human Rights Commission be given the power to grant special
measures certificates?
```

This is an important measure which would stop the misunderstanding of what ‘discrimination’ is and encourage and empower special measures to be taken to elevate and assist people with disability to be provided adjustments for their benefit. 35. Should a definition for special measures be added to the Disability Discrimination Act? Defining special measures would assist in misunderstandings of what steps might be considered ‘discriminatory’ and what are intended to be ‘adjustments to the social construct’. Language in relation to the special measures provisions needs to be considered…. At times a special measure might be confused as providing for a ‘special need’, yet not be necessary or appropriate. What if a ‘special measure’ is claimed to provide an ‘equal opportunity’, and yet it does not. Consider the example of disability sport. At times, a separate sport is required, to provide a fair contest, however, sport should be initially considered as to whether the person can be included in the mainstream and the ‘special measure’ not be required or wanted. Reference to ‘special needs’ in s45(1)(b) is inappropriate language. What are special needs? It is suggested that there is a language change to provide an ‘adjustment’ in accordance with ss5 and 6. Subsection (2) (a) should be considered to be clearer. ‘Discrimination’ in implementing a measure, presumes that it is discriminatory to implement the special measure. So, for example, to provide separate sporting contests for people with disability is discriminatory…but reasonably intended to provide an adjustment… and meet ‘special needs’. But if there was another measure, another adjustment, that did not require separate sport, then that adjustment would be preferable. And people with disability should have choice as to the adjustment and not be bound by a ‘special measure’.

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

The current provisions regarding Disability Action Plans (DAP) do not necessarily assist in the prevention of discrimination in sporting organisations. As identified by the Royal Commission, there is no requirement to have a DAP, and there is no system of registration or checking of the DAP’s for compliance with the DDA and the CRPD. DAP’s can be drafted by any person in the organisation without reference to a person with disability or to a person with lived experience with disability. The action planners can draft a plan and not implement it—without consequence (the DDA only provides for the appointment of persons to implement the provisions). DAP’s can be drafted without any consideration of substantive equality or transformative equality, without understanding or reflection of the CRPD, and without reference to the requirements of the DDA. In practice, in sport, and example id Australian Athletics—which has an Action Plan and still fails to provide for people with disability.

If the Action Plan provisions are to remain, to be effective and have any credibility there should be minimum requirements in their drafting, what they contain, who must be consulted and/or engaged in preparing it, what must be done in implementing it, and provide for ways of implementing and compliance.

My proposal:

The DDA should mandate Disability Action Plans for Sporting NSO’s and State Organisations at a minimum. The amendments should include minimum requirements as follows:

As currently set out in the Act
Be prepared in consultation with persons with disability or lived experience of disability
Provide for identification of areas within the organisation that do not provide for substantive equality/transformative equality
Development and implementation of strategies to change rules, policies and practices that do not implement the DDA.
Strategies for employment of people with disability in all areas of the business/ organisation.
Review of the action plans by the AHRC… power to require compliance.
Education through the organisation about substantive equality and the requirements of the Act and CRPD.
Consider specific Action Plans for sporting organisations to provide sport for people with disability in accordance with the Act and CRPD.
Provide for the areas in which people with disability are included together with mainstream, and when provided for separately, justify why and how they meet the Special Measures requirements.
The Action plan must be implemented.
The Plans must include transformative equality approaches, including the approach to adjustments.

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

Yes

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

Yes. Two years should be the longest period of time.

75 See s 61(f), DDA.

See above.

The AHRC should sanction the Plans.

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

The Standards need to be written more clearly.

Reversing the process that is complaints driven, would place the onus on the service provider to comply and establish compliance. An organisation having to report on the adjustments made and actions taken under the Standards, will relieve people with disability from the complaints process, and focus the service provider on the actions taken to comply, or not, and why. This is particularly so for education.

The DRC heard of the prevalence of a failure to make the adjustments in education. There is a widespread misunderstanding of the requirements to make adjustments to learning and assessment, and extra-curricular activities. This is both by the education providers and the parents of children in the system.

The complaint system for the DSE needs to be streamlined and simplified. The adjustments children need should be made quickly, and without delays or a conciliation conference or mediation. The AHRC should be empowered with an education review system to permit quick reviews of ad hoc problems, with power to direct education providers to provide the adjustment. The provide can then object and argue Undue hardship or lack of suitability.

The DSE requires urgent review for the community to understand the evidence required to obtain adjustments and the level to which adjustments can occur.

46. Should the Disability Discrimination Act be amended to encourage relevant duty holders to self-report on their compliance with the Disability Standard(s) in disability action plans?

Yes.

However, ‘encouraging’ will only be incentivised if organisations consider that they will be protected from claims by the reliance on DAP’s. That is currently not the case.

47. Could the Australian Human Rights Commission provide additional guidance to duty holders regarding how to self-report on the Disability Standards in disability action plans?

Yes. But also, in how to comply.

49. What additional guidance materials should be provided to the community, including duty holders, about the operation of the Disability Discrimination Act or specific amendments proposed in this paper?

There should be very clear education and consultation about the impact and application of the proposed amendments. The Australian Human Rights Commission could be tasked with an education and consultation agenda, to provide a public campaign about the impacts and the way the Act needs to be complied with—in particular the need for adjustments and social model approach. The DDA provides for this role at s67(1)(h).

The DDA currently provides for Standards (s31) and Guidelines (s67(1)(k)). There is merit in considering the place Guidelines and Standards might play in educating the community in complying with the DDA and assisting in compliance. Whilst each of Standards and Guidelines are different, there is an opportunity for them to be used appropriately. It is submitted that Standards and Guidelines should be implemented in relation to significant areas of society—including sport.

Sporting organisations, Schools, and the community will benefit from Guidelines that provide clear direction regarding how to comply with the Act. Guidelines should also be introduced in relation to sport, which provide practical examples of adjustments being made for people with disability to be provided competitive sporting opportunity with adjustments, clearly following Art 30.5 of the CRPD, and including people with disability in the contest, and not only the physical activity.

These Guidelines

Source Page 30

should contemplate adjustments to mainstream contests and sport more broadly. The Guidelines should and can also provide for examples of various other adjustments to sport for compliance with the Act. The Disability Standards for Education (DSE) should be amended to make it clearer what adjustments might be made, that are consistent with the amendments in this round of amendments; particularly where there is to be a change to ‘adjustments’ and ‘unjustifiable hardship’. (Note s31 requires amendment regarding ‘reasonable adjustments’ if that amendment is made). The DSE require amendment to include examples and requirements for compliance with the DDA (and DSE) in school sport.

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

1. The improvement of the complaints mechanism to provide for a much simpler process, and the ability of the AHRC to enforce compliance with the Disability Standards, and positive duties in the Act. Providing the AHRC power to enforce obligations and take action would provide a regulatory mechanism that would permit the AHRC to ensure appropriate and accurate compliance with the DDA.
1. Provide the AHRC the direction to issue Guidelines in certain areas of life and society: this should include sport. Require the Standards be reviewed more regularly than 5 years.
1. Require the AHRC to issue papers and guidelines that update and explain obligations from time to time.
1. Provide the AHRC with additional powers to enforce compliance with the Disability Standards.
1. Provide the AHRC with additional powers to enforce compliance with the positive Duties in the Act.

New Proposals for Amendments to the DDA, regarding Sport

The DDA must be amended in relation to sport. If there are amendments to the DDA in relation to the DRC recommendations, the impact in sport and s28 must be considered. Additionally, the opportunity to amend the DDA must include a revision of s 28, which is almost inoperable in the current DDA, and will remain so or be worse, in an amended DDA. The intent of the DRC must be realised for sport.

Disability sport requires attention. It is arguably discriminatory. It is arguably inadequate. It separates and segregates and treats people with disability differently, almost in direct opposition of the intent of the DDA. School sport is problematic. It does not provide adequately for children with disability. There is a misnomer that disability sport is a successful anti-discrimination measure. There is widespread misunderstanding that the contests in sport mean people with disability either fit in or have to ‘find their (disability) sport.’

Proposed Amendment of s 28

There is an opportunity to amend the DDA and replace s28; to satisfactorily implement Art 30.5 of the CRPD, and to provide for non-discrimination in sport. The DDA could be amended at s28 to provide for the appropriate provision of sport for people with disability in a way that includes them in competitive sport; first, with the mainstream, when they seek to, with adjustment to the rules, when it is necessary and desired to deal with disadvantage, and, second, when it is a disability specific sport, to provide comparable experiences to the mainstream. It is important to prevent discrimination that is sought to be excused or defended, on the basis that there is ‘no international pathway’, or no calculations for adjustments to rules. Sport should be available for everyone, in a comparable way.

An example section might be as follows.

28 Sport

It is unlawful for a person to discriminate against another person on the ground of the other person’s disability in relation to involvement in sport or any sporting activity.
In subsection (1), a reference to a sporting activity includes a reference to an administrative or coaching activity in relation to any sport, and instruction, training and resources, in relation to sport, and the contest within any sport.
In this section, to compete and/or have a contest, means a fair and meaningful competition or contest.
A fair and meaningful competition or contest is one that is designed to test certain attributes between competitors, taking into account foundational elements, such as gender, age, size and capacity or impact of impairment; and is not tokenistic, pitying or charitable.
In this section discrimination has the meaning given in ss 5 and 6, which includes a failure to make an adjustment to the sport and/or the contest within the sport.
To give effect to the Convention for the Rights of Persons with Disability, sport for a person with disability is discriminatory, if it does not comply with the following:

a. Offers a person with disability the opportunity to compete in the mainstream, without adjustment to the contest or activity if they choose;

b. Offers a person with disability the opportunity to compete in the mainstream, with adjustment to the contest to provide a fair and meaningful contest for them, or adjustment to the requirements of the sport or sporting activity, if they choose;

c. Offers a person with disability the opportunity to compete in a disability category of the sport if they choose—to be directly comparable, and conducted in unison with the mainstream;

d. Offers a person with disability the opportunity to compete in a disability category of the sport if they choose—to be directly comparable, and conducted in unison, or as integrated as possible with the mainstream;

e. Is a disability specific sport offered to all people (unless the disability specific sport is for representative honours, at which time subsection 6) applies);

f. Provides a representative pathway in the mainstream, with adjustment in accordance with ss 5 or 6, or in a disability specific sport category, as a choice.

g. Provides a representative pathway in a disability category.

This section does not render unlawful discrimination against a person:

a. If after an adjustment is made, pursuant to ss 5 or 6, the sport would be unsafe to anyone, because of the nature of the activity, the person with disability’s equipment, or the adjusted rules;

b. If after an adjustment is made, pursuant to ss 5 or 6, the sport for people without disability is significantly different from before the adjustment;

c. If the persons who participate or are to participate in the sporting activities are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other, subject to such selection including adjustments for disability, or a disability specific category or sport;

d. if a sporting activity is conducted only for persons who have a particular disability, and the first-mentioned person does not have that disability;

e. If the selection is for a National Team that will compete internationally (because internationally adaptions are not yet made).

It is not an excuse or defence to discrimination to claim that there is not an internationally recognised disability category or method, or that there is not an international pathway for the

Sport Opportunities Framework The following framework could provide the basis upon which Guidelines or Standards could be created and would assist sporting organisations in deciding how a child with disability might be best provided for in a competitive sporting opportunity, including in the school environment.

Can the person be included in the mainstream as the first option, and if they are at a disadvantage, the rules altered to provide them with a fair contest against mainstream?
If number 1 is not possible, can the person be included in the event with mainstream and rewarded separately as an athlete with disability?
If number 2 is not possible, can the person be provided a separate contest in a disability specific sport or category, that is fair and meaningful (i.e. not on their own), and that is comparable to the mainstream offering of the event or activity?
If number 3 is not possible, can the person be offered a separate, potentially segregated sport, that is as close to the mainstream offering in format, timing and venue, as possible?

Conclusion Many of the amendments suggested to the DDA would strengthen the requirement for sport to be adjusted for people with disability, and for school sport to be adjusted for children with disability. The inclusion of the reference to the CRPD in the objects means that the DDA would be intending to implement Art 30.5, relating to sport. The DDA does not currently reflect Art 30.5. If the DDA is amended as recommended by the DRC, in relation to the CRPD, definition of discrimination, removal of reasonableness, establishing positive duties etc etc…. s.28 of the Act needs to be addressed. S28 needs to be considered, first for its use of the term ‘reasonable’, and second for the effect of the world ‘excluded’, and third for the overall effect of the section in its operation and compliance with Art 30.5. Without amendment, what would remain a complex issue, whilst a 28 remains, is the way sport is to be provided for people with disability. What would need to be addressed in the DDA for sport, in order to reflect the intent of the amendments to the Act regarding substantive equality or transformative equality—and the CRPD, is;

Inclusion together with mainstream
The provision of a disability category in sports
The extent to which disability categories are to be provided
The choice for people with disability to take part
The need to address and adjust contests
The school experience for a child with disability taking part in sport including a competitive sporting opportunity in a way they seek, and adjustments made to provide for it. If these matters are not considered in the amendments, and s28 not addressed, the obligations for provision of sport for people with disability and students with disability, will be confusing and a barrier to inclusion in sport. Currently, sports providers and schools are not necessarily complying with the requirements of the DDA, and certainly not the CRPD.

If, in an attempt to simplify the issues in s 28, it is deleted from the DDA, discrimination in sport will be permitted, and Australia will fail to comply with the CRPD.

Sport will need to be specifically addressed, and the obligations clarified, to prevent an increase in disputes and complaints in sport, and to promote the elimination of discrimination.

Providing clear legislative guidance for sport to be adjusted and opportunities provided in accordance with the CRPD, will encourage greater access to, and fair and meaningful participation in sport for people with disability, and has the potential to not only improve the lives of people with disability, and increase their health and wellbeing, but to improve the numbers and performances of athletes with disability in a variety of sports in Australia.

Whilst international pathways are not a reason to be discriminatory, the removal of discriminatory structures in sport would also open up non international sports to greater participation, in contests, and to better experiences in the sporting structures.

The DSE are inadequate as far as sport is concerned. The DSE need to be reviewed to provide for sport in the school system in accordance with the DDA and CRPD. Amendments to the DA regarding sport, will necessitate the review and update of the DSE. It is recommended that the Minister consider the DSE be updated as far as sport is concerned. It is recommended that the Minister consider Disability Standards for sport to be issued. Guidelines for the inclusion of people with disability in sport should be published by the AHRC, in accordance with s67(1)(k), and reflect the amendments to the DDA in s28, and the other amendments that are made in the outcome of the Review of the DDA.

Specific attention to the collection of data and research in relation to disability sport, to be included in Disability Asset, and the NCCD and not confined to the sports sector.