at La Trobe Law School = UNIVERSITY

2025

About the La Trobe Law School

La Trobe Law school is prized for teaching and research excellence, and pursues partnerships with industry, community organisations, and government to create positive change in the world. We have a strong commitment to the rule of law and community service and use our findings to pursue and advise on law reform in Australia and overseas.

Within the School, members of the Law in Context research cluster are focused on building legal systems that are inclusive, equitable, and responsive to community needs. This submission has been led by members of the Disability, Health, and Justice node of the Law in Context cluster. Researchers in this group hold expertise across a range of critical areas, including the Convention on the Rights of Persons with Disabilities, mental health law and policy, social security law, and human rights in Australia.

This submission was prepared by Associate Professor Piers Gooding, redacted: s47F - Personal privacy. The views in this submission are our own, and do not reflect the views of the Law School overall.

Introduction

The La Trobe Law School welcomes this opportunity to contribute to the review of the Disability Discrimination Act 1992 (Cth) (‘DDA’). No contemporary system of laws that acknowledges disability as part of the reality of human diversity is complete without fit-for-purpose anti-discrimination legislation. We commend the government for seeking to remedy concerns about the DDA in its current form, seeking reform to promote substantive equality and challenge the systemic barriers that disadvantage people with disability.

Overall, this submission argues that while the DDA has made important contributions to the recognition of disability rights in Australia, it requires significant reform to become a more effective tool for achieving substantive equality and preventing disability-based discrimination. Our recommendations are directed at creating a more inclusive, accessible, and equitable legal framework in line with both leading practices in anti-discrimination law internationally, and Australia’s obligations under the UN Convention on the Rights of Persons with Disabilities (‘CRPD’).

This submission focuses on the discussion questions most relevant to the expertise of Disability, Health and Law node members at the La Trobe Law School.

Part 1 – Updating understandings of disability and disability discrimination

Definition of disability

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

We suggest the definition of disability should be amended and defined in line with leading conceptualisations of disabilities. The CRPD represents the most advanced formulation of disability in international law, and its principles should be incorporated into a new definition for the DDA. Drafters could convene targeted consultation with legal experts and disabled people for this purpose.

This definition would have the benefit of bringing the DDA into alignment with other areas of Australian law that incorporate the CRPD’s leading definition of disability. For example, although the National Disability Insurance Agency Act 2013 does not define ‘disability’, the CRPD’s definition has provided interpretive guidance, as it is referenced in the objects of the Act (s 3).

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

In line with the CRPD, we stress the importance of a definition that is non-exhaustive, which lists a range of disabilities, particularly those that can be sometimes overlooked in discrimination law, such as psychosocial disability. Other factors to incorporate, we suggest, include:

A reference to barriers and participation on an equal basis with others. The current DDA definition is non-diagnosis-specific, and this is a strength. But it lacks explicitly the reference to ‘barriers or participation on an equal basis with others’ language of CRPD, which we suggest should be incorporated. For example, the Court of Justice of the European Union advanced this definition in the context of discrimination in employment:

The concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.1

The point of a change along these lines would be to emphasise equal participation, inclusion, autonomy and dignity (per the human rights model of disability) rather than definitions such as ‘unable to do day-to-day activities’.

1 C-335/11, C-337/11 - HK Danmark, acƟng on behalf of JeƩe Ring v Dansk Almennyƫgt Boligselskab DAB and HK Danmark acƟng on behalf of Skouboe Wergev Pro Display A/S. This deﬁniƟon draws on the European Community (EC) law designed to combat disability discriminaƟon, and speciﬁcally, the disability provisions of the Employment Equality DirecƟve (DirecƟve 2000/78/EC), which was interpreted by the Court in line with the CRPD.

Allowance for episodic or fluctuating impairments and a definition that does not impose unduly narrow temporal or severity thresholds. Some definitions of disability for the purposes of discrimination law focus on the long-term nature of impairment. This can preclude coverage for people with short-term disablement, including psychosocial disabilities (for example, a young person experiencing psychosis for the first time).

Addressing intersectionality

Question 3: Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes?

We suggest it would. There should be no barrier to individuals who face discrimination on two or more characteristics – such as gender and disability – bringing a discrimination claim.

As one example, Piers Gooding and Rosemary Kayess in their book chapter on human rights and disability in Australia demonstrate that when gender and disability intersect — especially in contexts like institutional and domestic violence — harms are often minimised or reclassified as “service incidents”, leaving women and girls with disability with weaker protection and poorer access to justice.2 Gooding and Kayess argue that Australia’s siloed, single-identity-based discrimination framework, including the DDA, treats disability in isolation, such that gender-neutral rules in the disability context miss the specific risks at this intersection. As a result, protections for women and girls more generally often overlook disability-based disadvantage. These gaps are contrary to the CRPD’s more robust intersectional approach.

Instead, claims should be available on the basis of both a particular protected attribute ‘or a particular combination of two or more protected attributes’.

Question 4: Could any other changes be made to the Disability Discrimination Act to recognise and provide protection for people with disability who have intersecting identities, or addressing compounding discrimination?

Functional consistency across federal anti-discrimination laws and other legal frameworks such as the Fair Work Act 2009, as well as state and territory-level anti-discrimination laws – such that the key principles (non-discrimination, reasonable adjustment, positive duty) align in substance – could help make the legal framework more navigable, inclusive, and responsive for people with intersecting categories that compound discrimination. Greater consistency could help enable:

Recognition of multiple and compounding forms of disadvantage;
Easier access to justice; and
Stronger institutional accountability through shared positive duties and standards.

2 Piers Gooding & Rosemary Kayess, ‘Human Rights & Disability: An Australian Experience’ in P Gerber & M Castan (eds), Critical Perspectives on Human Rights Law in Australia Volume 2 (Thomson Reuters, 2022).

Recommendation 4.23 – amending the definition of direct discrimination

Question 5: 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?

The test for direct discrimination can be simplified by removing the ‘comparator test’. We support the Disability Royal Commission recommendation to instead adopt the detriment test, under which a person need only show that they were treated unfavourably because of their disability. The current comparator test — requiring proof that a person was treated less favourably than a hypothetical person without disability in similar circumstances — is inherently flawed and prone to producing unjust outcomes.

Purvis v New South Wales,3 as acknowledged in the Issues Paper, is a key example of how the High Court’s reliance on the comparator test entrenched a narrow, formal-equality approach to disability discrimination.4 By requiring comparison with a hypothetical non-disabled student, the Court could not consider the role of environmental and systemic factors, reinforcing ableist norms and prompting later legislative reform to include a duty of reasonable adjustment.

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

The case of Sklavos v Australasian College of Dermatologists (2017)5 demonstrates that although the 2009 amendments to the DDA were designed to create a positive duty to make reasonable adjustments, the Federal Court in Sklavos held that such a duty arises only where the failure to make an adjustment was because of the person’s disability.6

This interpretation narrows the obligation considerably, maintaining a formal-equality approach that requires ‘like treatment’ between disabled and non-disabled people rather than advancing substantive equality. Alice Taylor has observed that the Sklavos decision ‘removes the positive aspect of the duty from the requirement and makes it almost impossible for a claimant to prove their claim.’7

We therefore echo the Disability Royal Commission’s Recommendation 4.23(1A) to require applicants to prove that the unfavourable treatment occurred and respondents to prove that the unfavourable treatment was not based on the person’s disability.

As the Disability Royal Commission Final Report sets out, modernising this element of the can be done with two reforms: ‘first, to remove the need to prove comparative less favourable treatment’ and ’second, to mirror the approach used in the FWA with a rebuttable

3 Purvis v New South Wales (Department of EducaƟon and Training) [2003] HCA 62. 4 Piers Gooding & Rosemary Kayess, ‘Human Rights & Disability: An Australian Experience’ in P Gerber & M Castan (eds), Critical Perspectives on Human Rights Law in Australia Volume 2 (Thomson Reuters, 2022). 5 Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247; 347 ALR 78 6 For elaboraƟon on the limitaƟons of the DDA revealed by Sklavos, see Gooding and Kayess, above n 4. 7 Alice Taylor, ‘Disability Discrimination, the Duty to Make Adjustments and the Problem of Persistent Misreading’ (2019) 45(2) Monash University Law Review.

presumption, so that the onus rests on the respondent to prove on the balance of probabilities that the reason for the treatment was not disability.’8

Recommendation 4.24 — amending the definition of indirect discrimination

Question 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?

Question 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.

We echo the Australian Human Rights Commission’s 2011 recommendation that the Disability Discrimination Act 1992 (Cth) be amended to remove the additional requirement that a person must not comply or be unable to comply with a condition, requirement, or practice to establish indirect discrimination. This extra element adds unnecessary complexity and can weaken protection compared to sex and age discrimination law. Consistent with the Commission’s position, we also support replacing the current “reasonableness” test with a “legitimate and proportionate” test, which would better align Australian law with international human rights standards and simplify the assessment of discriminatory impact.9

Recommendations 4.33 and 4.34 — interpreting the Disability Discrimination Act in line with the Convention on the Rights of Persons with Disabilities

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

We suggest it should, yes. The inclusion of the CRPD in the objects clause of the DDA would bring the Act into clearer alignment with Australia’s international obligations as a signatory to the CRPD. The CRPD has had a major influence on disability law and policy reform in Australia over the past two decades, including in Australia, reframing persons with disabilities as rights-holders and affirming the principles of equality, dignity, and inclusion.10

The National Disability Insurance Scheme Act 2013 (Cth) already includes the CRPD among its statutory objects. Given that the DDA more directly embodies the Convention’s aims —

8 Commonwealth of Australia, Final report - Volume 4, Realising the human rights of people with disability (2023, p. 302).

9 Australian Human Rights Commission, Consolidation of Commonwealth Discrimination law: Australian Human Rights Commission Submission to the Attorney-General’s Department (2011) https://humanrights.gov.au/our-work/legal/consolidation-commonwealth-discrimination-law.

10 Gooding and Kayess, above n 4.

particularly the principles of non-discrimination, accessibility, and equality before the law — it would, we suggest, be both consistent and principled to do likewise. Such an amendment would affirm Australia’s ongoing commitment to the CRPD, strengthen interpretive guidance for courts and policymakers, and help ensure the DDA is read and applied in the light of the CRPDs universalist and transformative equality framework.

Including the CRPD in the DDA’s objects clause would also assist courts and tribunals in interpreting the Act consistently with Australia’s international obligations. As Gooding and Kayess argue, judicial engagement with the CRPD has so far been limited, largely because international treaties have not been directly incorporated into domestic law.11 An express reference in the DDA would provide a clear interpretive anchor — much like section 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in the Victorian context12 — ensuring that decision-makers read and apply the Act in a way that advances the CRPD’s principles of equality, inclusion, and universalism.

Question 11: 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, particularly to affirm the positive obligations on duty-holders to take active measures to prevent disability discrimination.

Part 2 - Positive duty to eliminate discrimination

Recommendations 4.27 and 4.28 – positive duty for duty holders to eliminate discrimination

Question 12: If there was a positive duty in the Disability Discrimination Act, who should it apply to?

Examples of who the positive duty should apply to, we submit, include employers, those providing access to goods and services, education, transport, housing, and healthcare.

Question 13: 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?

Positive duties requiring organisations to prevent disability discrimination and advance equality have emerged in the laws of several jurisdictions. These duties enhance traditional non-discrimination obligations by placing a proactive responsibility on duty-bearers to remove barriers before harm occurs. When properly designed and monitored, they can markedly accelerate progress towards equality and inclusion.13 Their impact is maximised

11 Ibid. 12 See eg, SlaƩery v Manningham City Council (Human Rights) [2013] VCAT 1869 (30 October 2013). 13 Lisa Waddington and Anna Lawson, Disability and non-discriminaƟon law in the European Union, An analysis of disability discriminaƟon law within and beyond the employment ﬁeld: European Network of Legal Experts in the non-discriminaƟon ﬁeld (2009). For example,

when implementation is overseen by an independent equality body, when individuals and representative groups can seek enforcement, and when compliance involves developing action plans in partnership with disabled people.

In Australia, according to People with Disability Australia (PWDA), the current complaints-based system is ineffective, retraumatising and inaccessible for many. A positive duty to prevent discrimination could be supported by clear penalties and enforcement mechanisms to ensure meaningful accountability and sustained progress towards equality and inclusion.

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

Recommendations 4.25 and 4.26 – strengthening the duty to provide adjustments

Question 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?

Yes, we suggest it would. Per the Royal Commission, we suggest a new provision should state:

Duty to make adjustments

It is unlawful for a person to fail or refuse to make an adjustment for: (a) a person with a disability; or (b) a group of persons with disability unless making the adjustment would impose an unjustifiable hardship on the person.

We echo the PWDA suggestion that the Australian Government examine the United Kingdom’s Equality Act 2006 (UK), which grants the Equality and Human Rights Commission’s powers to conduct formal investigations, compel information, enter binding agreements, and seek injunctions for human rights breaches, including the failure to provide reasonable accommodation.14

Recommendation 4.32 – definition of and considerations for unjustifiable hardship

Question 19: 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.

Sweden requires universiƟes to take acƟve steps to ensure equal rights for students under its Law on Equal Treatment of Students in Higher Education (2001). 14 People with Disability Australia, ‘Fight for Me Instead of Making Me Fight’ – Submission to the Attorney General’s Department’s Review of the Disability Discrimination Act 1992 (Cth) Review (2025).

a) The RC position was developed after the most extensive consultation that has occurred in Australia on the issue to date.

However, we suggest careful consideration of the PWDA recommendation that s 11(1) be amended to provide that in determining unjustifiable hardship, regard can only be had to the list of relevant factors, as opposed to ‘all relevant circumstances’.15

Part 7 – Further options for reform

Further options for reform

Question 48: Are there examples of legislative provisions in Commonwealth or state and territory anti-discrimination law that could be drawn on to modernise or strengthen the Disability Discrimination Act?

While not originating in discrimination law, recent supported decision-making frameworks across several Australian jurisdictions provide an important reference point for modernising the DDA. For a large number of people with intellectual, cognitive, and psychosocial disabilities, supported decision-making principles function as a core non-discrimination measure, recognising that people may require assistance to make and communicate decisions. Further, the lack of such support can itself amount to indirect exclusion or discrimination.

Australian legislative developments, such as the supported decision-making provisions in Victoria’s Guardianship and Administration Act 2019 and the proposed Assisted Decision-Making Act in NSW, operationalise these principles through duties to respect will and preferences, safeguards against undue influence, and formal recognition of supporters. As discussed by Piers Gooding and Terry Carney, these reforms reflect a gradual but significant shift from substituted to supported decision-making, giving effect to Article 12 of the CRPD and affirming the right to equal recognition before the law.16

The Disability Royal Commission in its Final Report similarly considered supported decision-making as a mechanism for upholding the rights of people with disability and protecting them from violence. The Australian Law Reform Commission recommended the adoption of a national, uniform supported decision-making framework in its landmark report Equality, Capacity and Disability in Commonwealth Laws in 2014.

Embedding similar principles in the DDA — for example, through an express object or operative provision recognising the right to support for exercising legal capacity — would strengthen the Act’s alignment with Australian innovations in supported decision-making law, the CRPD, and modern equality law. It would also underscore that access to appropriate support is integral to non-discrimination, particularly in contexts where denial of support effectively denies participation, autonomy, or access to justice.

15 Ibid. 16 Piers Gooding and Terry Carney, ‘Australia: Lessons from A Reformist Path to Supported Decision-Making’ in Michael Bach and Nicolás Espejo Yaksic (eds) Legal capacity, disability and human rights: Towards a comprehensive approach, Intersentia (2023) (255-276).