Recommendations to strengthen protections and promote equality | External submission

12 November 2025

Attorney-General’s Department

By email: redacted: DDAReview@ag.gov.au

Dear Attorney-General’s Department,

Submissions on the Review of the Disability Discrimination Act

Basic Rights Queensland and Working Women Queensland welcome the opportunity to make the following submission to the Attorney-General’s Department in relation to the review of the Disability and Discrimination Act 1992 (Cth) (the Act).

About Basic Rights Queensland and Working Women Queensland

Basic Rights Queensland Inc. (BRQ) is an incorporated non-for-profit organisation and community legal centre registered with the Australian Charities and Not-for-profits Commission. BRQ provides free information, advice, advocacy and legal services to Queenslanders. BRQ supports vulnerable, systemically oppressed and disadvantaged people in relation to social security, discrimination, human rights and employment law and further offers a specialised service for people with mental health concerns and those in regional and remote locations. BRQ supports clients through discrete advice, as well as through representation and support in Commission, Tribunal and Court contexts.

Working Women Queensland (WWQ) is a part of BRQ. WWQ provides free advice, support and information for vulnerable women in relation to employment related matters, including sexual harassment and gender discrimination. WWQ employ a team of solicitors, industrial advocates and social workers who offer a holistic, interdisciplinary approach. WWQ is the only specialist women’s employment service of its kind in Queensland. WWQ support women through various courts and tribunals, including by providing representation and support through conciliation and at conferences relating to unfair dismissal, gender protections and other applications.

This submission addresses eight key areas identified in the Issues Paper and our responses are informed by our casework experience. These areas reflect systemic gaps that limit the Act’s effectiveness and allow discrimination against people with disability to persist. Drawing on our experience supporting clients affected by these shortcomings, this submission demonstrates how the current framework fails to deliver meaningful protections in everyday life. We offer practical recommendations to strengthen protections and promote equality:

Introducing a positive duty to eliminate discrimination Strengthening the Act by imposing a proactive obligation on duty holders to take reasonable and proportionate measures to prevent discrimination, rather than relying solely on reactive complaints.
Embedding intersectionality in the Act Ensuring the Act recognises and addresses the compounded disadvantage experienced by people with disability who also face discrimination on other grounds, such as gender, race, or socio-economic status.
Modernising provisions on assistance animals Updating definitions and requirements to reflect contemporary practices and ensure consistent recognition of assistance animals beyond traditional guide dogs, including clarity on training standards and public access rights.
Clarifying and strengthening the duty to make reasonable adjustments Reinforcing obligations on employers, public entities, service providers, and others to provide timely and effective adjustments, supported by clearer guidance on what constitutes “reasonable” in diverse contexts.
Reforming the assessment of inherent requirements in employment Providing clearer criteria and safeguards to ensure that decisions about inherent requirements do not unjustly exclude people with disability, including consideration of reasonable adjustments before determining capability.
Revisiting the concept of unjustifiable hardship Reviewing the factors and thresholds applied when duty holders claim unjustifiable hardship, to ensure the test balances organisational capacity with the fundamental right to equality.
Addressing jurisdictional barriers under Section 13(4) Removing or mitigating conflicts between Commonwealth and State/Territory laws that create gaps in protection, for individuals navigating overlapping legal frameworks.
Updating definitions of direct and indirect discrimination Amending the causation test and clarifying the scope of discrimination to better capture systemic and structural barriers, informed by case law such as *Purvis v New South Wales (Department of Education and Training)*1 and Sklavos v Australasian College of Dermatologists2.

1 Purvis v New South Wales (Department of Education and Training) [2003] 217 CLR 902 2 Sklavos v Australasian College of Dermatologists [2016] FCA 179

1. Positive Duty to Prevent Discrimination

We support the introduction of a positive duty to prevent disability discrimination. A proactive approach to disability discrimination is essential to fostering respectful, diverse and inclusive workplaces.

Violence, abuse, neglect and exploitation of people with disability comes at a significant cost to the Australian economy. Researchers estimated that cost to be, at least, $46.0 billion in the 2021/22 financial year. Of that figure, $27.7 billion was attributable to systemic neglect,3 including lower employment resulting from discrimination. Those figures were considered to be conservative. If additional gaps in outcomes are taken into account, it was estimated that the total cost could be as high as $74.7 billion.4 This underscores the need for a legislated positive duty to facilitate engagement with all areas of public life, and in turn, ensure equitable outcomes for people with disability.

A positive duty under the Act is an important step towards national comprehensive legislative safeguards for people with protected attributes. At both federal and state levels, anti-discrimination laws are evolving from a purely reactive, complaint-based model toward a proactive approach by employers, persons conducting a business or undertaking (PCBU) and other duty holders under the Act. A positive duty under the Act would require duty holders to take reasonable and proportionate measures to eliminate disability discrimination before it occurs, rather than only responding after a complaint. 5 This approach aligns with recent reforms to other federal statutes, including the 2021 and 2022 amendments to the Sex Discrimination Act 1984 (Cth) (the SDA), and existing duties in certain states, such as Victoria’s Equal Opportunity Act 2010. Equally, the proposed positive duty will also align with broader workplace protections and duties. For example, the Work Health and Safety Act 2011 (Cth) requires PCBUs to “ensure, so far as practicable, the health and safety” of workers (and others).6 It is generally accepted that discrimination presents a risk of harm to a person’s physical and psychiatric

3 ‘Systemic neglect’ was defined as a failure by government and other systems that leads to unequal service delivery, unequal access to economic opportunity or systemic discrimination; Vincent, J., McCarthy, D., Miller, H., Armstrong, K., Lacey, S., Lian, G., Qi, D., Richards, N., Berry, T. (2022). Research Report - The economic cost of violence, abuse, neglect and exploitation of people with disability. Taylor Fry.. 4 Vincent, J., McCarthy, D., Miller, H., Armstrong, K., Lacey, S., Lian, G., Qi, D., Richards, N., Berry, T. (2022). Research Report - The economic cost of violence, abuse, neglect and exploitation of people with disability. Taylor Fry. 5 McDougall, S., Holmes, N., Queensland Human Rights Commission, Vasey, J., Corkhill, H., Dieckmann, C., Duncan, H. (2022). Building belonging: Review of Queensland’s Anti-Discrimination Act 1991 (report). Building Belonging. Accessed at: https://www.qhrc.qld.gov.au/ data/assets/pdf file/0013/40225/BuildingBelonging summaryandrecommendations.pdf 6 Work Health and Safety Act 2011 (Cth) s 19.

health.7 Accordingly, a large portion of employers and PCBUs already have, and would be familiar with, obligations to prevent discrimination under other statutory provisions, and the kinds of precautions they must take to ensure compliance.8

In its current state, the Act falls short in preventing harm to people with disability before it happens, and places the burden of seeking a remedy upon the victim. We are helpfully guided by the 2022 amendments to the SDA in this regard. Those amendments saw the introduction of a positive duty on employers and PCBUs to eliminate sexual harassment, and harassment and discrimination on the ground of a person’s sex.9 The following observations by Associate Professor Belinda Smith regarding the SDA amendments are apposite:

As researchers have argued over the years, rights-based systems can work to drive change, but even if most sexual harassment was reported, arguably, the key elements that enable such systems to drive change are absent from the federal anti-discrimination law system, namely a public prosecutor, public litigation, transparency that can expose perpetrators to risks of reputational damage, or orders that are punitive or corrective and transformational. The absence of these elements means the law applied little direct pressure on businesses and individuals to address sexual harassment. The negative rule, enforced by an individual claim, is a weak prompt for individual change and is even less effective at promoting wider cultural change. Fundamentally, it has no capacity to challenge and transform the underlying power structures of inequality that are driving sexual harassment.10

In our interactions with people with disability, we have found that employers, PCBUs and other parties such as residential body corporates tend to adopt a reactive approach to disability discrimination. They oftentimes rely on complaints to be made before intervening. This is best framed through the lived experiences of our clients who continue to face discrimination:

Case Study: Tara11 was part of a group of employees who were notified that their positions were at risk of redundancy. Tara requested reasonable adjustments to the consultation process on the basis of her disability but received little response and no changes were made,

7 Safe Work Australia. (2022). Managing psychosocial hazards at work: Code of Practice. Accessed at: https://www.safeworkaustralia.gov.au/sites/default/files/2022-08/model code of practice - managing psychosocial hazards at work 25082022 0.pdf 8 Attorney-General’s Department. (2025). Disability Discrimination Act 1992 Review Issues Paper. Accessed at: https://www.ag.gov.au/sites/default/files/2025-08/DDA-Review-Issues-Paper.PDF 9 Sex Discrimination Act 1984 (Cth) Part IIA. 10 Smith, B. (2023). Respect at Work amendments: A positive reframing of Australia’s sexual harassment laws. Australian Journal of Labour Law, 36(2), 145–171. 11 The client’s name has been changed for confidentiality.

causing Tara significant stress. Tara eventually wrote to her employer to raise concerns about disability discrimination. This prompted Tara’s employer to engage with Tara’s complaint and consider her request.

Case Study: Scott12 spent months training for an upcoming cycling event. He sought early permission from race organisers to participate. Scott was eventually told the race was not suitable for his wheelchair. Neither the racecourse nor the policies of the organisers had been designed to accommodate wheelchair athletes. Frustrated that his months of training and proactive communication were ultimately wasted Scott complained, and it was only then after experiencing detriment due to discrimination and expending further time and energy on a complaint that the organisers engaged with Scott.

Case Study: Lee13 experienced impairment related to his mobility and resided in public housing. When we spoke to Lee he had been placed in accommodation with narrow entries and passageways that could not accommodate his walker. This had led to several falls and fractures. Lee had requested safer accommodation from the department months before but was told that there was simply nothing available. If there was a positive duty to take reasonable and proportionate measures to eliminate disability discrimination before it occurs more disability appropriate accommodation would be designed and made available to accommodate individuals like Lee.

We observe people with disability may not report instances of discrimination. As reported in the Building Belonging report, the Queensland Human Rights Commission found that 79% of people who experienced discrimination never lodge a formal complaint.14 This can be because they think their concerns will be ignored or not handled confidentially, fear they may lose their job or be treated differently, think they will be a burden to their employer, or do not know or understand how to report discrimination.15,16 Further, lodging a complaint, or navigating the complaints process, can be overwhelming, complicated and a deterrent if representation or further support does not occur.

12 The client’s name has been changed for confidentiality 13 The client’s name has been changed for confidentiality 14 Queensland Human Rights Commission, (2022). Building belonging: Review of Queensland’s Anti-Discrimination Act 1991. Accessed at: https://www.qhrc.qld.gov.au/ data/assets/pdf file/0013/40225/BuildingBelonging summaryandrecommendations.pdf 15 Safe Work Australia. (2022). Managing psychosocial hazards at work: Code of Practice. https://www.safeworkaustralia.gov.au/sites/default/files/2022-08/model code of practice - managing psychosocial hazards at work 25082022 0.pdf 16 Chapman, K., Kendall, E., Ambrose, E., Barker, R. (2025). The Voice of Queenslanders with Disability. Griffith University. Accessed at: https://qdn.org.au/wp-content/uploads/2025/08/TheVoiceofQueenslanderswithDisabilityReport2025.pdf

Individuals experiencing discrimination may also experience layered and cumulative effects of a lifetime of discrimination which can result in a feeling of inevitability about the experience of discrimination or fatigue preventing engagement with the complaints process. We frequently encounter clients who cite these reasons for not reporting discriminatory conduct:

Case Study: Jasmine17 suffered a non-work-related injury, resulting in her taking personal leave and requiring a gradual return to work plan. Jasmine’s employer initially accommodated Jasmine’s absence and initial reduction in hours but did not grant the other accommodations she and her medical practitioners requested. The employer also told Jasmine that if she did not imminently return to full capacity, her position may be terminated. Jasmine eventually recovered and retained her employment but was discouraged from making a complaint to her employer out of fear of victimisation, including further discrimination or losing her job. Jasmine made a discrimination complaint which was only dealt with once she left her employment.

Case Study: Sanja,18 who has epilepsy, was scolded for cancelling shifts when she would have a seizure and even had her medical condition disclosed to a colleague without her consent. Despite this, Anja continued attending work, and has not made a formal complaint for fear of losing her job. She wants to avoid further discriminatory treatment and genuinely fears losing her job if she has to cancel another shift in the future due to an unpredictable seizure.

We have already begun to personally observe the benefits of a positive duty in preventing discriminatory conduct in the context of the SDA. In our communications with employers, or while participating in a conciliation conference in a variety of jurisdictions (including the Fair Work Commission and the Queensland Human Rights Commission), we have observed that the positive duty has acted as a framework through which an employer’s inaction is given ‘teeth’ – that is, the positive duty has affirmed the likelihood that an employer will seriously contemplate the risk of vicarious liability when they have not complied with the duty. The following case studies are illustrative:

Case Study: In supporting a client who had worked as a contractor to address experiences of sex discrimination and sexual harassment on site, a WWQ advisor engaged with the principal directly – raising the complaints and setting out plainly how their agents had not only engaged in unlawful sex discrimination and sexual harassment, but also how the principal had failed to comply with the positive duty.

17 The client’s name has been changed for confidentiality. 18 The client’s name has been changed for confidentiality.

In resolving the matter, WWQ’s leveraging of the positive duty convinced the principal to undertake a thorough investigation into the conduct and to require their agent to undertake anti-discrimination training – to ensure future compliance.

Our client remarked “this is my first time standing up for myself, and I am so chuffed to have an outcome. I couldn’t have gotten this outcome without you. Thank you so much to you and your team and everyone who has helped for your support”

Case Study: WWQ provided support to a client who had made a complaint of sexual harassment. At the conciliation conference, the lawyer acting for the Respondent acknowledged that the complaint had caused the employer to undertake a review of its policies and practices. They admitted that at the time of the conduct, there were serious inadequacies in policies, procedures and staff training that had caused the employer to fall afoul of their positive duty obligations. The lawyer acting for the Respondent explained what changes had since been made to the employer’s processes to ensure the conduct would not occur again, and that the employer has taken steps to implement a robust policy for dealing with complaints of sexual harassment, including all the elements of such a policy that our client had identified as a priority. The framework of the positive duty allowed for the employer to take ownership of the wrongdoing, and ultimately this admission created an environment in which our client was more able to resolve her complaint.

Most importantly, our client had experienced sexual harassment and other sexual violence throughout her lifetime, and she identified that this was the first time she had obtained adequate support to take action. Our client identified she would finally be able to access the mental health support she needs as a result of the financial outcomes reached.

We recommend that a proposed positive duty should largely mirror the structure and wording of the positive duty provision at section 47C of the SDA. However, we recommend this being applied to all duty holders under the Act. The rationale for that recommendation being that it, as per the Recommendations of the Disability Royal Commission, will ensure the duty is sufficiently wide to capture most (if not all) modern workplaces and businesses, and that the Act is consistent with other anti-discrimination legislation.19

Furthermore, we recommend explicit requirements for consultation with protected persons when determining whether a measure is reasonable and proportionate. Consultation is essential for

19 Disability Royal Commission, ‘Realising the human rights of people with disability’, Final Report, 2023, Volume 4, p 315

accurately recognising risks and identifying effective responses, as well as fostering inclusive participation and affirming the value of diverse voices.20 Direct collaboration with people with disability and their family has been found to be particularly beneficial in education settings and contributed to better outcomes for students.21

We acknowledge that a positive duty will have practical implications for duty holders. Costs of complying with a positive duty can be unpredictable, especially where complaints are made.22 Duty holders will need to invest in updating or developing policies, training programs, and monitoring systems to comply with the duty. This comes at a financial cost to those businesses. There may also be indirect costs, such as allocating working hours for employees to attend training. The proposed provision appropriately states that measures must be ‘reasonable and proportionate’. That is consistent with the Convention on the Rights of Persons with Disabilities, which provides that accommodations should not impose disproportionate or undue burden on the duty holder.23 Proportionality principles mean costs should scale by business size and capacity.24 The Queensland Human Rights Commission has noted that complying with a positive duty will present a challenge for smaller organisations with limited resources.25 For that reason, it is important the duty is flexible.

Having regard to the potentially wide scope of precautions that could be expected of a duty holder, we recommend that the Australian Government develop and publish guidance materials to assist duty holders with complying with the positive duty. Robust guidance will help duty holders understand what the duty requires in practice and the level of preventative action expected. Notably, when a positive duty was introduced in the SDA, the Australian Human Rights Commission (AHRC) published detailed “Guidelines for Complying with the Positive Duty” and companion materials including an information guide and fact sheets.26, 27 The Australian Government may wish to draw on the AHRC resources when developing guidance materials for the proposed positive duty.

20 Smith, B. (2023). Respect at Work amendments: A positive reframing of Australia’s sexual harassment laws. Australian Journal of Labour Law, 36(2). 21 Dimmock, K. (2024). Snapshot: Reasonable adjustments at school. Association for Children with Disability. https://www.acd.org.au/wp-content/uploads/2024/10/ACD Snapshot Reasonable Adjustments.pdf 22 Productivity Commission. (2004). Review of the Disability Discrimination Act 1992, Report no. 30. https://www.pc.gov.au/inquiries/completed/disability-discrimination/report/disability-discrimination.pdf 23 United Nations Convention on the Rights of Persons with Disabilities, 12 December 2006, art 6. 24 Queensland Human Rights Commission, (2022). Building belonging: Review of Queensland’s Anti-Discrimination Act 1991. https://www.qhrc.qld.gov.au/ data/assets/pdf file/0013/40225/BuildingBelonging summaryandrecommendations.pdf 25 Queensland Human Rights Commission, (2022). Building belonging: Review of Queensland’s Anti-Discrimination Act 1991. https://www.qhrc.qld.gov.au/ data/assets/pdf file/0013/40225/BuildingBelonging summaryandrecommendations.pdf 26 Australian Human Rights Commission. (2023). Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth). 27 Australian Human Rights Commission. (2023). Steps to meet the Positive Duty.

Effective introduction of a positive duty serves to bring tangible and intangible benefits to people with disabilities, duty holders, and society at large. Strengthening disability inclusion and proactively preventing discrimination can have far-reaching positive outcomes. A 2018 systematic review of international studies found four key benefits as a result of employing people with disability: improvements in profitability and customer satisfaction; increased workplace motivation and engagement; increased ability awareness; and secondary benefits for employees with disability,

including improved quality of life, enhanced self-confidence, and a sense of community.28

Recommendations

1.1 A proposed positive duty be implemented to apply to all duty holders under the Act.

1.2 Explicit requirement for consultation with protected persons when determining whether a measure is reasonable and proportionate.

1.3 The Australian Government develop and publish guidance materials to assist duty holders with complying with the positive duty.

2. Intersectionality

Your office posed the following question,

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

The simplest, reasonable and most compassionate answer is yes.

The Act would be significantly strengthened by expressly providing for concerns around intersectional discrimination. A person should be entitled to make a claim on the basis that the discrimination was caused by one or more attributes, or on the basis of the cumulative impact of the combination of two or more attributes.29

28 Lindsay, S., Cagliostro, E., Albarico, M., Mortaji, N., & Karon, L. (2018). A Systematic Review of the Benefits of Hiring People with Disabilities. Journal of Occupational Rehabilitation, 28(4), 634-655. Accessed at: https://doi.org/10.1007/s10926-018-9756-z 29 Queensland Human Rights Commission (2022). Building belonging: Review of Queensland’s Anti-Discrimination Act 1991, page 109.

This principle is referred to as intersectionality. Intersectionality refers to the complex, cumulative way in which the effects of multiple forms of discrimination (such as racism, sexism and classism) combine, overlap or intersect, often used in the context of explaining the experiences of marginalised individuals or groups.30

In its review of the state discrimination regime, the Queensland Human Rights Commission found that the greater number of attributes a person has, and the greater the intersection between those attributes, the less likely that person is to be adequately protected by the relevant Act.31 Further, research has found that the impact of harassment is compounded for those who experience intersectional disadvantage, and at the same time, the law was harder to access.32 There is growing awareness of the issue of intersectionality in anti-discrimination law and within the international human rights system.33

Such reform would act to reflect the lived experiences of individuals who face compounded discrimination and to ensure that legal protections are inclusive and effective. It would also ensure that people with multiple attributes know that they are protected by the law and more broadly, recognise that humans are in their very being, multifaceted and layered.

The Act was introduced in 1992 as a landmark step towards securing human rights for all Australians, particularly those with disabilities, and aimed to eliminate discrimination based on disability in areas such as employment, accommodation, sport, education and provision of goods and services.34 Section 10 of the Act acknowledges that people can be discriminated against for more than one reason, but otherwise, the Act is silent and does not expressly cover intersectionality.35

Intersectional studies have revealed that victims of intersectional discrimination are more likely to suffer from aggravated forms of discrimination, which are often more intense and make the person

30 Intersectionality. (2025). In Merriam-Webster Dictionary. 31 Queensland Human Rights Commission (2022). Building belonging: Review of Queensland’s Anti-Discrimination Act 1991, page 106 32 Australian Human Rights Commission, Respect@ Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 2020), 171-172. 33 Goldblatt, B. (2015). Intersectionality in International Anti-discrimination Law: Addressing Poverty in its Complexity. Australian Journal of Human Rights 21(1), 47. https://classic.austlii.edu.au/au/journals/UTSLRS/2015/6.html 34 Mr Bruce Scott (Maranoa) in the Disability Discrimination Bill 1992 Second Hearing (The House of Representatives, 19 August 1992). 35 Queensland Human Rights Commission (2022). Building belonging: Review of Queensland’s Anti-Discrimination Act 1991, page 105.

more vulnerable in society, and victims are more likely to suffer from structural inequalities in society, to be at risk of poverty, social exclusion and marginalisation.36

The real-life impacts of issues surrounding intersectional discrimination are best viewed through the perspective of our clients who regularly face compounding discrimination in their day-to-day lives. Notably, BRQ and WWQ often assists clients who allege disability discrimination, together with other forms of discrimination including sexuality, relationship status, family responsibilities and parental status.

Case Study: Lisa37 was unable to access her apartment within a body corporate complex as her disability made it too difficult to open the heavy security door at the front of the common property, without support from another person. Lisa was also the mother of a 3-month-old baby, and her inability to safely access her home meant that she was reliant on other people to fulfil her family responsibilities. The body corporate was not amenable to replacing the front door with a more accessible sliding or other easy lift door. The multifaceted nature of Lisa’s intersectional experience magnified the detriment and discrimination she faced.

It is relevant to note that Australia is a party to the United Nations’ Convention on the rights of persons with disabilities (the Convention).38 A primary purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to promote respect for their inherent dignity.39 Pursuant to Article 3, a principle of the Convention includes ‘non-discrimination’ and ‘respect for difference and acceptance of persons with disabilities as part of human diversity and humanity’. Furthermore, the Convention explicitly recognises intersectionality, noting ‘concerns about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status’.40 Allowing claims to be brought for multiple or combined protected attributes would clearly accord with the stance on intersectionality under international soft law.

That is not to say that express recognition of intersectional discrimination doesn’t come without hurdles. A commonly cited concern raised in this regard is that the concept is a contestable ideological

36 Council of Europe. (2025) Intersectionality and Multiple Discrimination. https://www.coe.int/en/web/gender-matters/intersectionality-and-multiple-discrimination. 37 The client’s name has been changed for confidentiality. 38 United Nations (2006). Convention on the Rights of Persons with Disabilities. 39 United Nations (2006). Convention on the Rights of Persons with Disabilities, Article 1. 40 United Nations (2006). Convention on the Rights of Persons with Disabilities, Preamble.

concept or perspective, ultimately increasing complexity,41 and potentially accessibility for complainants. There are also suggestions that allowing combined grounds complaints could complicate a claim and make it more costly for complainants.42 Such complexity may also cause delays in any claims and raise a general sense of discontent and a loss of trust in the legal system for complainants. It may also raise challenges for complainants (subject to the wording of any such provisions) to need to prove multiple forms of discrimination and further raising issues of access to justice.

Ultimately, there will need to be a balancing exercise involved to avoid issues regarding complexity and cost-related concerns against the benefit that individuals will see. Simply because there are hurdles in the process of addressing intersectionality does not mean that the Act should not attempt to do so. These issues are extremely relevant to people living with disability, and it is not reasonable to leave complainants without recourse. Further, express recognition and acknowledgement of intersectionality increases visibility of individuals facing such discrimination, and is ultimately a step towards comprehensive anti-discrimination legislation. Oversimplified legislation, which sees protected attributes exist in silos, ignores the complexities of overlapping forms of disadvantage, does little to address compounded marginalisation, and raises the barriers to support and justice. Reform to prevent disability-based inequality cannot be completed in isolation from work to address other forms of discrimination – to do so would be to disregard the unique experiences of individuals, and prevent the creation of safe, respectful workplaces and institutions which are accessible and responsive to unique and evolving needs.

The Australian Human Rights Commission (AHRC) says modernising the Act will better protect the rights of people with disability.43 Notably, President Hugh de Krester says:

The reform of the DDA is also an opportunity to improve Australia’s other anti-discrimination laws so they work more effectively and coherently together. People’s experiences of discrimination intersect and compound across disability, age, race, sex, gender and sexuality.

Yet currently, the DDA and the Racial, Sex and Age Discrimination Acts have inconsistent standards of protection. This creates confusion and inefficiency and makes non-compliance

41 Australian Christian Lobby (2025). Submission: NSW Law Reform Commission Review for the Anti-Discrimination Act 1977 (NSW). 42 Human Rights Law Alliance submission as discussed in the Queensland Human Rights Commission (2022). Building belonging: Review of Queensland’s Anti-Discrimination Act 1991. 43 Australian Human Rights Commission. (1 August 2025). Commission Welcomes Review of Disability Discrimination Act.

more likely. We need our discrimination laws to work together in a simple and effective way. We need to make it easier for people to understand their rights and obligations.44

We recommend that the Act expressly recognise discrimination on combined grounds within the meaning of direct and indirect discrimination. We note Victoria’s Gender Equality Act 2020 contains the following provision at section 6(8):

Gender inequality may be compounded by other forms of disadvantage or discrimination that a person may experience on the basis of Aboriginality, age, disability, ethnicity, gender identity, race, religion, sexual orientation and other attributes.

We suggest a similarly worded provision be adopted into the Act. Further, and though beyond the scope of these submissions, we consider it would be hugely beneficial to standardise the definitions of discrimination to include compounding or cumulative impacts across all federal anti-discrimination legislation.45 This could be through amalgamation of protected grounds into a single piece of legislation.46 Standardisation of the definition of discrimination to capture intersectionality would promote consistent application of anti-discrimination legislation, and extend the coverage of federal anti-discrimination legislation to ensure protections are proportionate to the potential harm.

We further recommend the language of the entire Act be updated to remove the implication that discrimination is on the basis of a single attribute.47 This includes clarification around terminology regarding the complaints-based system, concepts like tests and thresholds to establish direct or indirect discrimination, and the requirement of the burden of proof for elements of those tests.48 For example, consideration should be given to amending section 5(1) of the Act to replace the words “on the ground of a disability” with words to the effect of “on the ground of one or more protected attribute”. Similar amendments should be considered with respect to the entirety of Part 2 of the Act. This would streamline complaints processes, create overlap with other anti-discrimination legislation, and aid in establishing a system wherein a singular complaint may raise multiple or compounded bases of discrimination.

44 Ibid. 45 Australian Human Rights Commission. (2021). Free & Equal: A reform agenda for federal discrimination laws Summary Report, accessed at: file:///C:/Users/9904671/Downloads/ahrc free equal dec 2021.pdf 46 Ibid. 47 Queensland Human Rights Commission, (2022). Building belonging: Review of Queensland’s Anti-Discrimination Act 1991. https://www.qhrc.qld.gov.au/ data/assets/pdf file/0013/40225/BuildingBelonging summaryandrecommendations.pdf 48 Multicultural Australia (2022). Review of the Anti-Discrimination Act 1991. Accessed at: Microsoft Word - Multicultural Australia Submission to the ADA Review signed

Recommendations

2.1 The Act expressly recognise discrimination on combined grounds within the meaning of direct and indirect discrimination.

2.2 The language of the entire Act be updated to remove the implication that discrimination is on the basis of a single attribute.

3. Assistance Animals

At BRQ, we witness the profound impact assistance animals have on the lives of people with disability firsthand. These animals foster independence, confidence, and connection - not only by supporting physical tasks, but also by enhancing emotional wellbeing, social participation, and personal safety. Yet, time and again, we see people who rely on assistance animals subjected to discrimination, denied entry, or forced to defend their rights and their disability. What’s most concerning is that this often doesn’t stem from bad intentions, but from a fragmented and inconsistent legal framework across Australia.

Currently, section 9 of the Disability Discrimination Act defines an assistance animal as one that is either:

accredited under a state or territory law,
accredited by a prescribed training organisation, or
trained to assist a person with a disability to alleviate the effects of that disability.

This three-limb definition has created significant ambiguity, leaving people with disabilities uncertain about how their assistance animals are recognised, trained, accredited, and supported across jurisdictions.

In 2025, BRQ partnered with student researchers from the University of Queensland to explore the lived experiences of assistance dog handlers. What we heard was deeply troubling: the gaps in the legislative framework are forcing people with disability to repeatedly justify the legitimacy of their assistance animals. This places an enormous and unfair burden on handlers.

As one participant told us ‘[i]f you want to blend in in a crowd, having an Assistance Dog is not the right way to go about it. Because everyone looks and everyone wants to know, and everyone will talk about you. So, you’ve definitely got to have thick skin to be able to go out in public with your dog’.49

Under both the federal Disability Discrimination Act and Queensland’s Guide, Hearing and Assistance Dogs Act, handlers must navigate overlapping and often confusing definitions. While an assistance animal may meet both sets of criteria, the DDA’s inclusion of animals that are trained but not formally accredited is frequently misunderstood and contested by the general public. This has created a legal grey area, leaving many unsure of their rights and increasingly vulnerable to discrimination.

Recent tribunal decisions continue to demonstrate that discrimination against assistance animal handlers is not a historical issue - it is happening today, across all sectors of life. In Matthews v Woombye Pub Trading Pty Ltd [2022], a Sunshine Coast resident was repeatedly denied entry to a local pub with his assistance chihuahua, Coo-ee, despite having medical documentation. The Queensland Civil and Administrative Tribunal found the venue had breached the Anti-Discrimination Act 1991 (Qld) and awarded $8,000 in compensation. Coo-ee was not formally accredited under a state scheme or by a prescribed organisation, but was trained to assist with a disability - falling under the third limb of the DDA definition.50 This limb, which covers animals trained to alleviate the effects of a disability without formal accreditation, is frequently misunderstood and contested in practice.

Similarly, in Jackson v Ocean Blue Queensland Pty Ltd & Ors [2020], a tenant was evicted after her landlord refused to accommodate her assistance dog, Muffin, despite its role in managing her mental health. The tribunal found that both the property manager and owner had directly discriminated against her under the same Act, awarding $10,000 in compensation for the distress and loss suffered. Like Coo-ee, Muffin was not formally accredited but was obtained following medical advice and trained to assist - again aligning with the third limb of the DDA.51

These cases highlight the persistent misunderstanding and contestation of assistance animal legitimacy, especially in circumstances where animals are trained but not formally accredited. They reinforce the urgent need for nationally consistent laws, simplified accreditation pathways, and proactive duties to prevent discrimination in both public and private settings.

49 Anonymous participant (P4), University of Queensland, SOSC3202 Research Report Unleashing Accessibility Exploring the Experiences of Assistance Dog Handlers in Queensland, 2023, p 20. 50 Matthews v Woombye Pub Trading Pty Ltd [2022] QCAT 301; Disability Discrimination Act 1992 (Cth) s 9(2)(c)(i)-(ii). 51 Jackson v Ocean Blue Queensland Pty Ltd & Ors [2020] QCAT 23; Ibid.

We are calling for:

i. Nationally consistent laws and recognition People with disability should not lose their rights at a state border. We need uniform recognition of assistance animals - regardless of where or how they were trained. In order to achieve this, section 9(2) of the DDA should be overhauled so that there is a national register of organisations certified to provide accreditation, a uniform Public Access Test (PAT) and sub-section (c) should remain to provide a low-cost alternative to accreditation with additional guidelines in respect of “trained” and “standards of hygiene and behaviour that are appropriate for an animal in a public place”.

ii. Simplified and inclusive accreditation pathways Accreditation must be clear, accessible, and nationally recognised. This includes supporting both established providers and diverse, community-based training options that are not cost-prohibitive. The focus should not be on “training” as a broad concept, but on the tasks, or a single task, the assistance animal performs and how those tasks alleviate the symptoms of that person’s disability.

iii. Positive duties to prevent discrimination It’s not enough to act after someone is denied entry or treated unfairly. Governments, services, and businesses must have a proactive duty to ensure people with assistance animals are welcomed—not excluded.

iv. Public education to challenge stigma and improve awareness Misunderstanding and outdated attitudes remain widespread. National education efforts are needed to improve public understanding of assistance animals, invisible disabilities, and legal rights. This should be done as a national awareness campaign, developed in consultation with disability organisations and those with lived experiences, on assistance animal rights

We also welcome and endorse the draft Assistance Animal National Principles and their proposals for a national public access test, a standardised ID card, consistent evidence requirements, and recognition of animal welfare throughout the working life of assistance animals.

Recommendations

3.1 Introduce nationally consistent laws and recognition.

3.2 Simplify accreditation pathways.

3.3 Ensure positive duties to prevent discrimination extend to governments, services, and businesses.

3.4 Australian Government should prioritise public education to challenge stigma and improve awareness.

4. Clarifying the Duty to make reasonable adjustments

At BRQ, we see every day how language shapes rights. The phrase “reasonable adjustments” has long been part of the Act, but in practice, it creates barriers rather than removing them. The inclusion of the word “reasonable” shifts the focus away from the needs of people with disability and onto the convenience or cost considerations of organisations and employers. We submit that this language invites debate about what is “reasonable” rather than prioritising inclusion and accessibility as fundamental rights.

Through our casework, we have witnessed how this ambiguity plays out. People with disability are often required to justify why an adjustment is “reasonable”, placing an unfair burden on them to defend their right to participate equally. This process can be intimidating, legalistic, and adversarial discouraging individuals from seeking the support they need. The result is that many people simply go without adjustments, reinforcing systemic disadvantage. This is particularly highlighted through the lived experiences of our clients who continue to face discrimination when requiring reasonable adjustments from their employers:

Case Study: Alita52 worked full-time in a male dominated refrigeration industry. Over the course of her employment, Alita experienced a significant decline in physical and mental health, due to diagnosed endometriosis, other reproductive health issues, and ongoing mental health impacts stemming from childhood sexual abuse. These impairments affected her energy, concentration, and ability to manage the increasing demands of the role. Alita was also

52 The client’s name has been changed for confidentiality.

prescribed new medication, which compounded her fatigue and reduced cognitive function. Alita disclosed her health conditions to her employer, including the impact they were having on her ability to maintain a high and growing workload, in the hopes of working with the employer to implement reasonable adjustments to accommodate her. Despite this, her employer:

Created pressure that led Alita to disclose deeply personal and traumatic information in order to justify her performance;
Reprimanded her for not focusing, rather than responding supportively to the disclosed health conditions;
Increased her workload after disclosure;
Required her to work excessive hours without compensation; and
Provided no reasonable adjustments.

Alita resigned, after supplying a medical certificate for the final two weeks of her employment but received no pay for the entire month.

Case Study: Olivia53 developed a disability as a result of work-related travel. Specifically, air travel undertaken for work caused her ears to “pop” and fail to regulate pressure, which led to a severe double ear infection. Medical assessments later confirmed that Olivia suffered from permanent hearing loss in her right ear and borderline hearing loss in her left ear. Surgical intervention was required to address the impairment. Following her diagnosis, Olivia disclosed her hearing impairment to her employer. In the initial weeks, the employer demonstrated responsiveness and support, making reasonable adjustments such as allowing Olivia to use the speaker function on calls to accommodate her hearing needs. However, this support was short-lived, and the workplace culture shifted. Olivia was belittled and reprimanded for using her mobile phone to access Zoom via speaker mode - an adjustment necessary to overcome communication barriers caused by her hearing loss. Olivia was excluded from important email chains, impacting her ability to perform her role effectively and she was left out of workplace celebrations and team activities, contributing to a sense of isolation and exclusion.

Case Study: August requested reasonable adjustments in the workplace related to their neurodivergence. There had been no difficulty meeting the expectations of their role in the

53 The client’s name has been changed for confidentiality.

past. Still, they wanted to proactively create an environment more amenable to their needs so that they could thrive at work. The workplace seemed initially responsive, requesting further medical evidence. Unfortunately, rather than engaging with the request for adjustments the workplace sidestepped the request and then used the information August had shared to argue that given their neurodivergence, August may not be suitable for their job.

Even though the further evidence requested by the employer later definitively confirmed August’s suitability for employment, the nature of the employer/employee interaction following August’s request for reasonable accommodation had an irrevocable impact on the employment relationship and it was no longer tenable for August to remain in their position.

Alita, Olivia and August’s54 stories exemplify the very real-life scenarios that play out when requesting reasonable adjustments, and the hurdles people with disabilities face when conversing with employers.

Clarifying ‘reasonable adjustments’ would also profoundly improve the experience of discrimination for individuals needing adjustments in education or when engaging with government services. These clients often contact us seeking confirmation that their accommodation requests are reasonable-uncertain if they have grounds to challenge adjustment decisions even when they have obtained supportive evidence and recommendations from well-respected medical and disability specialists.

The Disability Royal Commission recognised this problem and recommended removing the qualifier “reasonable” so that the law refers simply to “adjustments”. This change is more than semantics - it reflects a shift towards a rights-based approach consistent with the UN Convention on the Rights of Persons with Disabilities. It acknowledges that adjustments are not optional “extras or special treatment”; they are essential measures to ensure equality and dignity.

Simplifying the language also makes the law clearer and more accessible. “Reasonable adjustments” is a technical term that can confuse both individuals and organisations. By adopting the term “adjustments”, we remove unnecessary complexity and send a strong message: inclusion is standard practice, not a matter for negotiation. This change would also complement moves towards positive duties as we addressed above, by encouraging proactive steps to remove barriers rather than reactive compliance after discrimination occurs.

We are calling for the upcoming DDA reform to adopt this recommendation. The law should require organisations to make adjustments unless doing so would cause unjustifiable hardship - a safeguard

54 These clients’ names have been changed for confidentiality.

that already exists and strikes the right balance. Removing “reasonable” does not remove the unjustifiable hardship safeguard; it simply ensures that the starting point is inclusion, not limitation.

Through our service delivery, we see that discrimination is rarely the result of isolated incidents - it is often the product of systems that fail to anticipate the needs of people with disability. As we have already established, the current Act is largely reactive: it prohibits discrimination, but only after harm has occurred. People with disability are left to carry the burden of making complaints, navigating complex processes and reliving traumatic experiences simply to enforce their rights.

The Disability Royal Commission also recognised this gap and recommended introducing a duty to make adjustments that applies generally to all contexts and settings. This is a transformative stand-alone reform that BRQ also endorses. Instead of adjustments being implied within specific parts of the Act, the duty would be explicit, universal, and enforceable across all sectors. It would require organisations to take steps to remove barriers and provide adjustments wherever people with disability interact with their services, workplaces, or systems.

This duty matters because it shifts responsibility from individuals to systems. It would reduce the need for people with disability to fight case by case for inclusion and would help prevent discrimination before it occurs. It would also create consistency across sectors - ensuring that whether someone is applying for a job, accessing health care, renting a home, or using public transport, the same clear obligation applies. This approach reflects a rights-based framework and aligns with Australia’s obligations under the UN Convention on the Rights of Persons with Disabilities.

We submit the scope of this duty must be broad. It should apply across employment, education, goods and services, housing, health care, public spaces, transport, digital environments, and government functions. Essentially, wherever people with disability engage with systems, those systems should be required to act to eliminate discrimination and provide adjustments. Without a clear, stand-alone duty, people with disability will continue to experience harm before the law can protect them.

Further, when adjustments enter the conversation, duty holders often default to claims of unjustifiable hardship. While we strongly support clarifying what constitutes unjustifiable hardship in the Act, this clarification must not dilute the obligation to make adjustments. Too often, cost or inconvenience is cited as a first response rather than exploring practical solutions. To prevent this, the law should require genuine consultation and consideration of all reasonable options before any claim

of unjustifiable hardship can be made. This approach strikes the right balance: it preserves the safeguard of unjustifiable hardship while ensuring it is not used as a default excuse.

Recommendations

4.1 Introducing a stand-alone duty to make adjustments that applies generally to all contexts and settings. Our preferred approach is to embed a clear process obligation in the Act, requiring duty holders to:

Engage in meaningful consultation
Duty holders must consult with the person with disability (and, where appropriate, their representative) to understand their needs and explore possible adjustments.

Consider all viable options
Before claiming unjustifiable hardship, duty holders should demonstrate that they have assessed alternative adjustments, including low-cost or phased solutions, and considered funding or support schemes.

Provide transparent reasoning
If an adjustment is refused on the basis of unjustifiable hardship, the duty holder should be required to give written reasons outlining the factors considered, including cost, practicality, and impact on others.

Document the decision-making process
This ensures accountability and allows for review if a complaint is made.

5. Reforming the Assessment of Inherent Requirements in Employment

The current framework under section 21A of the Act provides that discrimination is not unlawful if, after reasonable adjustments, a person cannot perform the inherent requirements of the job. While this exemption is intended to balance employer needs with anti-discrimination principles, in practice it often creates barriers for people with disability.

As established in the matter of Qantas Airways Ltd v Christie (1998)55, the High Court held that inherent requirements are those essential to the position, not incidental or peripheral. Essentially the significance of this decision was the meaning of inherent requirements entrenches an employer-centric model that prioritises operational convenience over inclusion. This makes it extremely difficult for people with disability to bring claims under the Act because the test focuses on what employers define as “essential” without requiring meaningful consultation or comprehensive consideration of adjustments.

Your office welcomed views on whether the following factors would improve decision-making by employers:

That the Disability Discrimination Act be amended to include two additional factors that must be considered in determining whether a prospective or existing employee would be able to carry out the inherent requirements of particular work, being:

the nature and extent of any adjustments made; and

the extent of consultation with any person with disability concerned.

BRQ supports amending the Act to include these two factors when assessing whether a person can perform the inherent requirements of a job.

This reform would improve decision-making, align with anti-discrimination principles, and reduce systemic barriers to employment. Similarly, mandating consultation promotes procedural fairness and respects the autonomy of people with disability. It also provides employers with accurate information about capability and adjustment needs, reducing reliance on assumptions and stereotypes. These changes would align domestic law with Australia’s obligations under Article 27 of the UN Convention on the Rights of Persons with Disabilities, which requires States to prohibit discrimination and ensure reasonable accommodations in employment.

The following lived experience from one of our clients, highlights the impact of employer perceptions and inherent requirements:

Case Study: Yuri56 was overlooked for a promotion because their employer assumed that their disability would require “too much support” to perform the role. This assumption was made despite Yuri having successfully acted in the role under higher duties without issue and

55 Qantas Airways Ltd v Christie (1998) HCA 18; 193 CLR 280 56 The client’s name has been changed for confidentiality.

performed their existing role for over a year without any adjustments. When asked by a WWQ advisor what the reason had been for the delay in seeking advice, Yuri described their fear that if they raised a complaint of disability discrimination while employed, the employer had powers to simply send them to an Independent Medical Examination that would find them unfit to perform their existing role. The client described how, working in a small field with limited jobs, the impact of being fired for this reason will hinder future employment opportunities, rendering them unable to work again. This is an inherent tension for all work-related complaints of disability discrimination that often appears to be weighted in an employer’s favour, which is, raising legitimate concerns of less favourable treatment will open up otherwise not raised and irrelevant concerns that a client cannot perform the inherent requirements of their role.

To further strengthen the framework, additional measures should be considered, including a requirement for employers to provide documented reasons when adjustments are deemed infeasible, consideration of technological aids and flexible work arrangements, and transparency through internal or external review of decisions invoking the exemption.

We need reform to move away from the employer-centric model and towards a framework that embeds fairness, consultation, and accountability. If these reforms are implemented, we may see the development of new case law precedents that challenge and move beyond the restrictive interpretations of the courts, as seen in Qantas Airways Ltd v Christie.

Recommendations

5.1 The Act be amended to include two additional factors that must be considered in determining whether a prospective or existing employee would be able to carry out the inherent requirements of particular work, being:

the nature and extent of any adjustments made; and

the extent of consultation with any person with disability concerned.

6. Jurisdictional Barriers

A jurisdictional barrier exists at section 13(4) of the Act. Pursuant to that provision, where a complainant has instituted a complaint under State or Territory anti-discrimination legislation, the complainant may not institute a complaint arising out of the same act/s or omission/s with the AHRC under the Commonwealth legislation.57 All other Commonwealth anti-discrimination legislation contains a like provision,58 although we observe the statutory prohibition at section 13(4) is slightly narrower compared to those in the SDA and RDA.59 The primary rationale for these provisions is to prevent the difficulty presented by double penalties and forum shopping.60

Importantly, section 13(4) (and equivalent) does not provide for any minimum level of action that must be taken in respect of a complaint under State or Territory law for the prohibition to come into effect. In other words, once a complaint is brought under State or Territory law, and that forum has jurisdiction to deal with the complaint, the complainant will automatically lose the right to lodge the complaint with the AHRC even if it the complaint has not been adequately dealt with under the State or Territory law. This can create procedural difficulties and roadblocks to complainants accessing justice where the jurisdiction is unclear. We have seen this in practice:

Case Study: Erik61 had filed a complaint in the area of provision of goods and services with the Queensland Human Rights Commission. The Respondent, however, was a not-for-profit and could argue this status an exemption in that jurisdiction. Erik had not received legal advice prior to lodging his complaint and was unaware that because of the exemption he would have had a stronger complaint with the AHRC, as there is no exemption for not-for-profits under the Disability Discrimination Act 1992 (Cth). Because of the operation of section 13(4), Erik was restricted from lodging the complaint in the AHRC and instead was required to persist in the QHRC.

We further note the case of Price v Department of Education & Training (NSW). There, a complaint had been made to the NSW Anti-Discrimination Board under the Anti-Discrimination Act 1977 (NSW). That complaint was ultimately rejected on the basis that it did not disclose any contravention of a provision of the Anti-Discrimination Act 1977 (NSW). A complaint was subsequently lodged with the Human

57 Ewens, B.C. (2018). (B) Commonwealth – Anti-discrimination Legislation. Halsbury’s Laws of Australia. 58 Racial Discrimination Act 1975 (Cth), s 6A(2); Sex Discrimination Act 1984 (Cth), s 10(4); Age Discrimination Act 2004 (Cth), s 12(4). 59 Singh v Australian New Zealand College of Anaesthetists [2025] FEDCFAMC2G 563. 60 Minister in the House of Representatives in the Second Reading Speech (Hansard, House of Representatives, 25 May 1983, 923-924) – quoted in Singh v Australian New Zealand College of Anaesthetists [2025] FEDCFAMC2G 563. 61 The client’s name has been changed for confidentiality.

Rights and Equal Opportunity Commission. An attempt to conciliate the dispute was unsuccessful and the Commission terminated the complaint. Proceedings were then commenced in the Federal Circuit Court of Australia. In opposing the application, the Department of Education argued that section 13(4) prevented the bringing of the proceedings as the applicant had made a complaint in respect of the same matters to the NSW Anti-Discrimination Board. The Court concluded the applicant was not entitled to bring the complaint before the Commission, nor was it entitled to bring the current proceedings, by virtue of the operation of section 13(4). The Court stated that section 13(4) is “not dependent on a duplicitous claim having been well-made in the first place … the fact that the ADB considered that the complaint to it was not well-made does not alter the fact that it met the criteria laid down by … s 13(4) of the Disability Discrimination Act”. The proceedings were dismissed.

These examples highlight the difficulties faced by complainants in accessing justice where they have experienced discrimination. Procedural technicalities may mean a complainant is precluded from submitting a complaint to the AHRC with new or additional information which could support their cause of action. The effect of this provision is that complainants, in essence, have to make an election as to which jurisdiction they want to pursue their complaint under, and are not afforded leniency where there may be initial flaws or issues with their complaint.

On the above, we recommend consideration be given to amending section 13(4) of the Act to specify that a person cannot bring a complaint before the AHRC only if it has already been adequately dealt with under State or Territory law.

Recommendations

5.1 The Act be amended to remove or mitigate conflicts between Commonwealth and State/Territory laws that create gaps in protection.

5.2 Amending section 13(4) of the Act so a person cannot bring a complaint before the AHRC only if it has already been adequately dealt with under State or Territory law.

7 Police ‘services’

Another notable barrier to accessing justice for discriminatory conduct is found in the arguably arbitrary application of the Act to functions carried out by the Police service. Section 3(a) provides that

62 Price v Department of Education & Training (NSW) [2008] FMCA 1018.

an object of the Act is to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of … the provision of goods, facilities, services and land. ‘Services’ is defined at section 4 to include financial, entertainment, recreational, transport, telecommunications, professional, trade, and government services. Section 24 of the Act specifically prohibits a provider of goods or services from discriminating against another person on the ground of disability. One might prima facie assume that the police providers a ‘government service’; however, Australian Courts and tribunals have found this is not necessarily the case. In Rainsford v Victoria, the Federal Court commented “not all government functions are services, although some undoubtedly are … the way in which the service is identified is critical. It is a question of fact determined by the situation of the particular case”.63 This captures the variability with which judicial bodies interpret the legislation and case law. These at times inconsistent interpretations often arise in the context of police conduct. A review of case law on the matter is helpful in highlighting these inconsistencies.

The English Court of Appeal decision in Farah v Commissioner of Police of the Metropolis is frequently raised in Australian cases and serves as a starting point for how Courts apply the meaning of ‘services’ to police functions. There, the Court found that the parts of the police’s duties involving assistance to or protection of members of the public entailed the provision of services to the public (and in that case, Ms Farah).64

The High Court in IW v City of Perth said that ‘services’ has a wide meaning. It includes ‘an act of helpful activity’ and ‘the duty or work of public servants’. Gummow J referred to services being rendered to an individual by conduct which tends to the welfare or advantage of that person. Having said that, as noted by Kirby J, a service may be provided even though the decision made is adverse to the user.65

In Robinson v Commissioner of Police, NSW Police Force, it was found that arresting an alleged offender, dealing with a bail application and maintaining custody over him while he was transported to hospital for medical treatment did not involve the provision of a service. That decision was affirmed on appeal.66 That decision is at odds with the decision in NSW Police Service v Estate Edward John Russell, which found that the pursuit and arrest of a suspect is not a ‘service’ to him, but detaining him is.67

63 Rainsford v Victoria [2007] FCA 1059. 64 Farah v Commissioner of Police of the Metropolis [1997] 2 WLR 824. 65 IW v City of Perth [1997] HCA 30. 66 Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770. 67 NSW Police Service v Estate Edward John Russell [2001] NSWSC 745.

In Marianai v NSW Police Force, State of NSW, it was found that the pursuit and arrest of a suspected criminal the questioning of that person, the determination of a bail application, and the decision to bring criminal proceedings against the person is not the provision of a service to that person.68

In Commissioner of Police v Mohamed, the Court found that “conduct of police officers with respect to a request for assistance in relation to possible criminal activity, where protection of persons or property may be required, can involve the refusal or provision of “services” …“.69

In Bickle v State of Victoria (Victoria Police), the applicant alleged that Victoria Police discriminated against him on the grounds of his disability “by refusing to provide the services of investigation of a crime where the applicant was victim; [and] in the manner in which the respondent has provided the services of crime investigation”. Snaden J relevantly stated:

Clearly enough, police conduct that is engaged in by way of investigation of alleged criminal wrongdoing will (or, at least, might) inure to the benefit of a person or persons who claim to have been its victim or victims. However, conduct does not qualify as a service merely because it is of benefit to one or more people.

There are authorities that recognise that certain aspects of police work might amount to the provision of services. The New South Wales Court of Appeal, for example, has held that “…the initial investigation of complaints of violence and the protection of the victims of violence provide services to the victims”70. There is English authority to like effect. With respect, such reasoning might readily be understood: in responding (by way of “initial investigation”) to a call for assistance—and, thereby, delivering would-be victims of criminal offending from harm’s way—police act in a manner that confers benefits uniquely upon those would-be victims in their capacities as such.

The same is not true in respect of subsequent investigation processes and the decisions that arise therefrom as to what, if any, action should be taken against those accused of criminal conduct. The investigation of alleged wrongdoing and the prosecution (or otherwise) of alleged wrongdoers are not functions that the police undertake so as to benefit alleged victims. They are undertaken because orderly civil society and the proper administration of criminal justice requires that they be undertaken. Plainly, that is of benefit to the community as a collective, as well as individually to those who might be the victims of particular

68 Marianai v NSW Police Force, State of NSW [2013] NSWADT 35. 69 Commissioner of Police v Mohamed [2009] NSWCA 432. 70 Commissioner of Police v Mohamed (2009) 262 ALR 519.

wrongdoing. But those functions are discharged in satisfaction of a duty with which the police are entrusted; not so as to confer a benefit upon any particular individual (including those claiming to be the victims of the conduct under investigation).

In Djime v Kearnes71, the Supreme Court of Victoria referred with apparent approval (at [130] and following) to reasoning adopted by an administrative tribunal that:

Services are not provided when police investigate an alleged offence, question an alleged offender, arrest an alleged offender, deal with a bail application, decide whether or not to lay charges, decide whether or not to prosecute charges and decide how a matter will proceed in court…

In Mohamed, Handley AJA, in obiter, distinguished requests for police assistance from “…the later stages of an investigation and decisions whether or not to prosecute or arrest…alleged perpetrators”. The latter, he said, would generally not qualify as the provision of a service. That reasoning is consistent with Cavanough’s J reasoning in Djime, and with other superior and inferior court and tribunal rulings.

Conduct engaged in by police in the process of investigating alleged criminal wrongdoing is not conduct that amounts to the provision of a service, whether at large or to those who claim to have been the victims of particular wrongdoing. The same is true of the decisions that are made—and the conduct in which police engage in consequence of the decisions that are made—about how or if those investigations should proceed to the laying of charges or the prosecution of offenders.72

(citations omitted)

Having accepted that the bulk of the conduct alleged against the respondent did not occur in the provision of a service, His Honour ordered that the pleadings be struck out for want of a reasonable cause of action.

These decisions “draw a seemingly arbitrary line in the sand regarding when a person subject to the exercise of police powers is entitled to the protection of anti-discrimination law”.73 Furthermore, these decisions highlight the frequency with which police personnel discriminate against members of the public in the course of exercising their duties. With the level of trust placed in police bodies and their

71 Djime v Kearnes [2019] VSC 117 72 Bickle v State of Victoria (Victoria Police) [2020] FCA 168. 73 Walsh, T., & Taylor, M. (2007). ‘You’re Not Welcome Here’: Police Move-on Powers and Discrimination Law. UNSW Law Journal 30(1), 151, 165.

agents by the community at large, it is imperative that there are mechanisms through which police personnel are held to account for their conduct, and victims of discriminatory conduct by police personnel are able to seek redress.

The requirement under the anti-discrimination legislation to prove that policing constitutes a ‘service’ in order to receive the benefit of discrimination protections contrasts with the Human Rights Charter, which imposes obligations on public authorities (such as police services) to act compatibly with, and give proper consideration to, human rights in all public acts and decisions.74

In light of the above, we recommend consideration be given to expanding the definition of ‘services’ within the Act to capture police services. At a minimum, we consider the definition should capture police functions associated with the prevention and detection of crime, and requests for assistance. This would accord with the current common law approach.

Recommendations

7.1. Amend section 13(4) of the Act to specify that a person cannot bring a complaint before the AHRC only if it has already been adequately dealt with under State or Territory law.

7.2 Expand the definition of ‘services’ within the Act to capture police services.

8. Causation Test

Under the current provisions of the Act, an individual with a disability must demonstrate the following elements to establish that they have been subjected to direct discrimination:

a) They have been treated less favourably than a person without disability in similar circumstances (the Comparator Test); and

b) The treatment they experienced was because of the disability (Causation).75

Firstly, establishing direct discrimination requires the application of a comparator test. This means the applicant must demonstrate that a person without their disability, in circumstances that are not materially different, would have been treated more favourably than they were. A major criticism of the comparator test is that the task of identifying an appropriate comparator is practically difficult and

74 Cauchi, S. (2015). Tribunal clarifies when police actions are ‘services’ for the purpose of discrimination law. Human Rights Law Centre. 75 Disability Discrimination Act 1992 (Cth) s 5(1).

artificial.76 For example, a person who is dismissed because they required six weeks personal leave due to a hospitalisation following an exacerbation of their mental health condition might be compared with an employee who required six weeks unexpected and unauthorised leave unrelated to a disability. In this case, the court is likely to find that the employer would have treated the other employee requiring a long, unexpected period of leave without a disability no differently to the person with the disability, therefore the dismissal was not discriminatory.77

The decades old, High Court precent set in *Purvis v NSW (Department of Education and Training)*78 both highlights and entrenches the impracticality and artificiality of the comparator test. In Purvis, the High Court accepted that the definition of a disability includes its behavioural manifestations but then proceeded to de-emphasize the causal relationship between the disability of an excluded student with an acquired brain injury and their impairment related behaviour. Ultimately, the High Court decided that another child, without the disability but with the same behaviour, would have also been excluded from the school and that therefore the exclusion was not discriminatory. The legacy of Purvis for the practice of discrimination law is increased complexity and artificiality in everyday practice. The legacy of Purvis for individuals experiencing disability is the erasure of their experience.

The Disability Royal Commission recommended removing the requirement to apply a comparator test when assessing claims of direct discrimination. Instead, they proposed that the focus should shift to the actual experience of unfavourable treatment or detriment faced by the person with disability, without the need to compare their treatment to that of a person without disability.

At BRQ, we submit that the assessment of direct discrimination should centre on whether a person with disability has been subjected to unfavourable treatment, without requiring the identification or construction of a comparator. This approach reflects the recommendations of the Disability Royal Commission, which advocated for the removal of the comparator test from the Act. Notably, in jurisdictions where the legislation does not explicitly require a comparator, relevant tribunals have affirmed that there is no implied legal obligation to apply one.79

For example, neither state legislation such as the Equal Opportunity Act 2010 (Vic) nor the Discrimination Act 1991 (Act) requires the use of a comparator test to establish direct discrimination.

76 Victoria Legal Aid. (2020). Addressing discrimination to prevent violence, abuse, neglect, and exploitation: Submission in response to the Disability Royal Commission. 77 Ibid, page 13. 78 (2003) 217 CLR 902 79 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; Ibid.

Instead, both jurisdictions adopt a test based on whether the person with a protected attribute has been treated unfavourably, thereby simplifying the legal assessment and avoiding the complexities associated with identifying or constructing a comparator.

We recommend that the term “less favourable” be replaced with “unfavourable” in the context of direct discrimination. This change would align the Act with the Victorian Equal Opportunity Act 2010, which uses the terminology of “unfavourable treatment”. The concern with retaining the term “less favourable” is that it inherently invokes a comparator-based analysis, which has proven to be complex and difficult to satisfy in practice.

We support the adoption of the detriment-based test in place of the comparator test for assessing direct discrimination. This approach aligns with the model used in the Fair Work Act 2009 (Cth), which prohibits ‘adverse action’ against individuals on the basis of protected attributes, including physical or mental disability.80 By focusing on the actual experience of detriment or unfavourable treatment, rather than requiring a hypothetical comparison, this test provides a clearer and more accessible framework for individuals seeking protection under anti-discrimination law.

Additionally, under the current model, an applicant must establish that they were treated less favourably and that the treatment was because of their disability. However, the Disability Royal Commission found that, in practice, courts often expect the respondent to provide an explanation for their conduct, specifically, why they made a decision or acted (or failed to act) in a way that resulted in the less favourable treatment of the applicant.81

The Disability Royal Commission recommended that the burden of proof for direct discrimination under the Act be amended to reflect the approach taken in the Fair Work Act 2009 (Cth).82 Under this framework, the applicant would be required to establish that the alleged discriminatory treatment occurred, while the onus would then shift to the respondent to demonstrate that the treatment was not based on the person’s disability.

In theory, the legal framework surrounding reasonable adjustments for people with disabilities appears supportive. However, the decision in Sklavos v Australasian College of Dermatologists (Sklavos) 83 exposed a significant flaw in practice, particularly around the issue of causation. The court’s interpretation created an artificial barrier, requiring individuals to prove that the detrimental

80 Fair Work Act 2009 (Cth) s 351. 81 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2023). Realising the human rights of people with disability (Final Report Volume 4), p 301. 82 Ibid. 83 [2017] FCAFC 128.

treatment they experienced was directly caused by their disability, rather than merely associated with it. This narrow view of causation makes it extremely difficult for people with disabilities to succeed in discrimination claims.84

The majority judgment in Sklavos redefined the duty to provide reasonable adjustments. It held that, to establish direct discrimination, a person with a disability must demonstrate that the failure to make reasonable adjustments was because of their disability. This interpretation places a heavy evidentiary burden on complainants, who often struggle to isolate disability as the sole or primary cause of adverse treatment. Furthermore, the decision limits the scope of indirect discrimination by allowing discriminatory conditions or requirements to stand if they are deemed ‘reasonable’, regardless of their impact on individuals with disabilities.

Ultimately, the key issue in Sklavos was causation. The court’s approach undermines the protective intent of anti-discrimination legislation by introducing an artificial and often insurmountable hurdle. Instead of focusing on the practical effects of failing to accommodate disability, the judgment prioritises a strict causal link that is rarely straightforward in real-world scenarios. This has significant implications for the rights of people with disabilities, making it harder to challenge exclusionary practices and secure necessary adjustments.

We therefore recommend amending the burden of proof for direct discrimination under the Act, aligning it with the approach adopted in the Fair Work Act 2009 (Cth). Under this model, the applicant would be required to establish that the alleged discriminatory conduct occurred. The onus would then shift to the respondent to demonstrate that the treatment was not based on the individual’s disability.

Recommendations 8.1 The term “less favourable” be replaced with “unfavourable” in the context of direct discrimination. 8.2 Amend the burden of proof for direct discrimination under the Act, aligning it with the approach adopted in the Fair Work Act 2009 (Cth).

84 Disability Discrimination Legal Services Inc. (2020). Submission: Select Committee on Autism: Support and life outcomes for autistic people.

Conclusion

Basic Rights Queensland and Working Women Queensland appreciate the opportunity to contribute to this important review of the Disability Discrimination Act 1992. Throughout this submission, we have outlined practical recommendations informed by our extensive experience supporting people experiencing discrimination and Human rights contraventions and addressing systemic barriers in employment, and everyday life.

In addition to the recommendations detailed in this submission, we strongly support comprehensive reform of the Act. The current framework is failing to uphold the rights of people with disability and does not provide the robust, contemporary protections required in a modern, inclusive society. Reform must go beyond incremental change—it should embed proactive duties, address intersectionality, and ensure accountability for eliminating discrimination.

We welcome legislative changes that close existing gaps, strengthen enforcement, and align the Act with Australia’s obligations under the Convention on the Rights of Persons with Disabilities. These reforms are essential to ensure the Act delivers on its fundamental purpose: eliminating discrimination and promoting equality for all people with disability.

We urge the Attorney-General’s Department to prioritise timely implementation of these reforms and to continue engaging with organisations and individuals with lived experience to ensure the Act reflects real-world needs and challenges.

If you would like further information or would like to discuss the submission, please contact James Farrell on redacted: s47F - personal privacy or redacted: s47F - personal privacy

Yours sincerely,

Basic Rights Queensland

redacted: s47F - signature

James Farrell

CEO