Submission to

Disability Discrimination Act 1992 Review

24 October 2025

Introduction

Master Builders Australia Ltd (Master Builders) provides the following response to the Discrimination Disability Act 1992 Review (the Review).

This response does not answer all questions in the Discussion Paper but provides industry specific feedback across various topics. Master Builders would welcome further discussions in relation to this feedback, if required.

Master Builders acknowledges that Government is committed to the reforms but has not yet decided on the appropriate model moving forward. Master Builders recommends that due care and attention is provided to the comments made in this response for the benefit of the building and construction industry generally.

Background – who are we?

Master Builders is the nation’s peak building and construction industry association, which was federated on a national basis in 1890. Master Builders’ Members are the Master Builder State and Territory Associations. Over 130 years, the Master Builders network has grown to more than 32,000 businesses nationwide, including the top 100 construction companies. Master Builders is the only industry association representing all three sectors: residential, commercial, and civil construction. For noting, the membership contingent is made up predominantly of small and medium-sized enterprises.

Master Builders’ vision is for a profitable and sustainable building and construction industry. Master Builders appreciates the opportunity to provide feedback on matters that are relevant to our industry for the purposes of ensuring suitability and sustainability of practices but to also hold fast to our vision for the industry.

The Master Builders network also delivers vocational education and training through its network of registered and group training organisations across Australia. This includes trade qualifications in building and carpentry as well as ongoing professional development training. Training is provided to industry participants and to the general public which might also include persons with disabilities. The training framework and compliance obligations already requires consideration to be given to persons with disabilities, to ensure that access to training and support whilst training, is made available.

Membership with Master Builders is a stamp of quality, demonstrating that a builder values high standards of skill, integrity, and responsibility to their clients. Recruiting and retaining workers into the building and construction industry remains a priority for Master Builders as does ensuring these workers are provided with a safe working environment.

General feedback

The building and construction industry is one of the most heavily regulated industries in Australia and this Review is one of several currently on foot that have the potential to impact the industry.

Of note Master Builders is concerned about the significant crossover between the Disability Discrimination Act 1992 (DDA) and existing legislation including the Fair Work Act 2009 (FW Act) and the Work, Health and Safety (WHS) legislation, both at a Federal level and in each respective jurisdiction.

To that end industry is calling for any reforms to be considerate of other legislative arrangements to ensure that there are no additional processes or complex provisions being imposed and that where reforms are made, they can be understood and implemented in an efficient and cost-effective manner.

Recommendations

Master Builders would ask that a cautious approach be taken in relation to the range of proposals set out in the Discussion Paper.

The cumulative effect of regulation must be borne in mind and on that basis a holistic approach must be taken to this Review.

To that end, Master Builders recommends that the following act as a lens through which to consider the proposals outlined in the Discussion Paper:

The need for clarity and consistency in the interpretation and application of the legislation, considering complementary legislation.
The practical implications posed by the proposed amendments to the definitions and introduction of the positive duty. Notably the Discussion Paper does not provide any case studies or examples specific to the building and construction industry so it is unclear how proposals could or would be implement within the environment.
Ensuring that the reforms to do not further add to the regulatory burden currently imposed on employers.
Ensuring that access to justice is evenly weighted and usable by all parties. Of note, improvements to the processing of complaints and decision-making requires additional resources to ensure effective and efficient outcomes for all parties involved.
The need for information and education to support all parties to whom this legislation applies. This includes suitable information available for employers that is clear and concise.
The need for suitable transition periods for the introduction of any reforms, particularly for SMEs.
Consideration must also be given to whether there might be unintended consequences from the reforms and measures put in place to respond appropriately.

Section-specific feedback

Part 1 – Updating understandings of disability and disability discrimination

While it is noted that the existing definitions contained in the DDA have been reported to cause confusion, Master Builders has a number of concerns with respect to proposed changes to the definition of disability.

Firstly, while clarity and consistency of terminology across legislative frameworks is generally supported, there are potential adverse consequences should the definitions in the FW Act be amended to align with the definition of disability from the DDA. Most significantly, this could impact the operation of the general protections provisions under the FW Act as well as lead to confusion from the proposed reverse onus of proof under the DDA.

When it comes to defining disability in the DDA, consistency in terminology across various pieces of legislation, including but not limited to the FW Act, should be a primary consideration. There should be emphasis placed on clarity of the definition as well as how the definition must be applied. This also needs to be complementary with other legislation that might also cover the term ‘disability’.

Secondly, a shift to the use of the ‘social model of disability’ is of concern.

The medical model is the preferred model on the basis that it is clearer and more definitive, noting that this is also consistent with the findings of the 2004 Productivity Commission report, which is deemed to be more appropriate, when defining a ‘disability’. It is however, acknowledged that the intricacies of various State/Territory anti-discrimination legislation might reflect more modern terminology and further consultation and discussion would be required to determine which, if any, was more suitable for incorporation in the DDA.

Further to this, evidentiary requirements to confirm that a disability exists needs to be satisfactory without being discriminatory, as well as considering the increasing list of disabilities and disorders that might be captured by this definition.

Thirdly, an expanded definition could have unintended consequences. Not only would this broaden the scope of the matters covered by the DDA but has the potential to allow for a ‘scatter-gun’ approach to be taken for multiple or combined attributes where an intersectional complaint is made.

It would be detrimental to employers across all industries where claims could be made for multiple or combined attributes. An applicant should be required to demonstrate grounds for separate claims of discrimination, particularly where a matter is brought before the court. Master Builders supports the continuation of the comparator test under the DDA.

Finally, Master Builders supports the current definitions and tests associated with the definitions of ‘direct’ and ‘indirect’ discrimination under the DDA.

Part 2 – Positive duty to eliminate discrimination

Master Builders has strong concerns with the proposal to adopt a reverse onus on employers, being the positive duty to eliminate discrimination under the DDA. This stems from feedback regarding the existing positive duty under the Sex Discrimination Act 1984 (Cth) (SDA) as well as the complexities with dealing with ‘disabilities’ – the list of which is vast as is what is to be expected of employers.

The SDA was amended to introduce a positive duty on duty holders to eliminate sexual harassment and sex discrimination in connection with work, as far as possible. This requires the duty holder to take steps to actively eliminate discrimination or sexual harassment from occurring.

Simply speaking, a positive duty under the DDA should not be adopted simply because it has been in the SDA, specifically:

As mentioned previously, there are intricacies to be considered with the definition of a ‘disability’ that raise complex questions in relation to how a blanket positive duty could be implemented in practice.
The introduction of the positive duty under the SDA has caused significant confusion for industry. The same outcome would be expected should a similar approach be taken under the DDA.
The obligation under the SDA has added an additional requirement to be taken into consideration on top of a variety of other risk mitigation steps that arise under other legislation, including the WHS legislation. Complexity is further added when dealing specifically with State and Territory legislation.
The reverse onus provided under the FW Act for a general protections claim for example, has significantly increased the risks of employers facing adverse action claims, which arguably encourages ‘speculative litigation’.

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

Reasonable adjustment

There are potential unintended consequences that could result from removing ‘reasonable’ from the reasonable adjustments definition of the DDA.

The creation of the standalone duty to provide adjustments would generate a significant burden on an employer, particularly where they are an SME, should the element of ‘reasonableness’ be removed from the definition. This also has a culminative effect when considered by way of interaction with other legislation, such as the FW Act and the provisions relating to adverse action. Consistency in the terminology is critical – as previously emphasised.

Master Builders does not accept that the outcome of the decision in Sklavos presents any legitimate justification for replacing references to ‘reasonable adjustments’ with ‘adjustments’ or creating a ‘stand‑alone duty to provide adjustments’. These amendments go well beyond addressing the alleged issues generated by that decision. One option to consider is whether carefully drafted guidance materials and information might assist an employer with assessing and implementing ‘reasonable adjustments’.

Unjustifiable hardship

The definition of ‘unjustifiable hardship’ is proposed to be changed to determine whether consultation and consideration of all options to make adjustments would be reasonable prior to the duty holder being able to claim ‘unjustifiable hardship’.

The current provision does not require consultation between the duty holder and the person with a disability about what is needed or what adjustments might be suitable. Further to this, there is no requirement to document or to keep records of these interactions from occurring. It is, however, apparent from the common law that the courts will look to the evidence relating to each of these things when assessing a claim of unjustifiable hardship.

Should such a proposal proceed, clarity will be required as to what factors are to be considered when determining whether a hardship has in fact been sustained – such as what is the test to confirm that consultation had taken place and/or what considering all options includes. If a duty holder was

required to consider all options for adjustments, this might be a costly and time-consuming exercise for the duty holder. It is important that this is also not taken as a requirement to make all reasonable or possible adjustments.

The question of ‘reasonableness’ has been considered in various pieces of legislation, such as in the WHS legislation and this test is subjective and relative to a particular set of circumstances. This means that there is ‘no one size fits all’ outcome.

Part 4 – Access to justice

Should the proposals progress there is the potential for confusion and inaccessibility to justice, including for employers, arising from allegations of discrimination, interpretation of provisions and who bears the onus of proof as well as how effectively and efficiently these matters are dealt with.

There may be a number of avenues where a claim might be made for an aggrieved person, such as in the Australian Human Rights Commission (AHRC) or in the Fair Work Commission, but generally industry is exposed to adverse action claims made under the FW Act.

There are existing provisions, for example, in the FW Act which provide for general protection claims for adverse action which includes discrimination for a physical or mental disability, and how this might overlap with a potential discrimination claim to be brought through an alternative avenue remains unclear and complex for both parties navigating this process, not to mention those matters.

Employers require clarity in relation to how to respond to a claim (or multiple claims), that includes case studies and industry-specific references, where appropriate.

Again, there is significant crossover between what is provided in the DDA and other industry applicable legislation, such as the FW Act and the WHS legislation which already provides for protections regarding bullying and harassment and discrimination generally. As a result, and to encourage compliance from employers, consistency in the application would be of assistance and would also aid in minimising regulatory burden and overload.

Master Builders acknowledges that where a contravention has occurred, the duty holder who has contravened those provisions of the DDA is to be penalised. Penalties imposed should be relevant to the contravention the conduct that led to the contravention and the harm suffered.

There must be an education piece on duty holder obligations to ensure that there is clarity in the duty holder’s obligations under the DDA and what would constitute a contravention along with how penalties are assessed and imposed.

Further consultation with industry will need to occur in relation to amendments to fully ascertain the practical implications of the proposed legislation, once it has been drafted.

Part 6 – Modernising the Disability Discrimination Act

In relation to Disability Action Plans (DAP), Master Builders supports the development of a DAP in certain circumstances and when applicable, however, further clarification will be required to determine whether some of the information to be captured is already contained in other documents, such as WHS management plans.

A template DAP should be made available for employers as a minimum requirement.

In addition to DAPs, the proposed changes to enforcement also needs proper consideration.

Increased enforcement relating to the Disability Standards by introducing penalties for the failure to comply, increasing the powers of the AHRC to deal with compliance of the standards, and encouraging compliance with disability action plans requires further education to support these reforms and to better inform those impacted by the changes. There is significant confusion about the role of the AHRC and how matters are to be dealt with. There are also concerns with the efficiency in the hearing of matters across all sectors.

Other factors that must be considered is how these reforms might impact on other areas or requirements imposed on the building and construction industry. For example, a Disability Standard is a legally binding regulation that sets out specific rights and responsibilities. These standards detail what needs to be done to prevent discrimination in key areas, such as access to public buildings and transport. The National Construction Code (NCC) is already complex, and consideration must be given to how these things are intertwined in other areas of the industry and how they are to be best dealt with.