NDIA Accountability Project

Submission to the Disability Discrimination Act 1992 (Cth) Review

‹ PrevPage 1 of 16 · Source p. 1Next ›

Tasmanian Government
Submission to the
Disability Discrimination
Act 1992 (Cth) Review

October 2025

Policy and Reform
Department of Premier and Cabinet

Table of Contents

2

Introduction

The Tasmanian Government welcomes the opportunity to make a submission to the Australian Government Attorney-General’s Department review of the Disability Discrimination Act 1992 (Cth) (DDA). The DDA makes it unlawful to discriminate against a person because of their disability in many areas of public life. Both direct and indirect discrimination is unlawful.

Tasmania is committed to ensuring the human rights of all people with disability are upheld and people with disability can envision a future in which they are equal participants in the economic, social and political life.

This submission does not address all consultation questions, rather it seeks to make key observations and highlight areas of importance for the Tasmanian Government.

Tasmanian Context

The Tasmanian Government is committed to supporting the rights of all people with disability as set out in Australia’s Disability Strategy 2021-2031 and the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD).

A recent review of the Disability Services Act 2011 (Tas) undertaken by the Tasmanian Government led to the development of the Disability Rights, Inclusion and Safeguarding Act 2024 (Tas). This Act advances and safeguards the rights of all people with disability and advances the full and effective inclusion of all people with a disability.

3

Part 1 Understanding of Disability and Disability Discrimination

The definition of disability

The Tasmanian Disability Rights, Inclusion and Safeguarding Act 2024 definition of disability is based on the social model of disability and is purposefully inclusive. The Act defines disability in relation to a person as including long-term physical, mental, cognitive, intellectual or sensory impairments which in interaction with various barriers may hinder the person’s full and effective participation in society on an equal basis with others.

The Tasmanian Government suggests that the definition of disability in the DDA should ensure it is clear what characteristics a person may have to constitute experiencing a disability. A use of contemporary language and movement away from negative terminology along with a shift from impairment based to barrier-based language would be helpful. The definition should not create an additional requirement to prove disability.

The development of a new definition should be conducted in alignment with the UN CRPD and address concepts of intersectionality (see the next section for further detail). A new definition should be co-designed by people with disability. The resulting definition should also be clear enough for application in legal and policy settings.

The Tasmanian Government also suggests that it may be helpful to consider the status of babies and children who are showing developmental delay or concern when developing a new definition of disability.

Addressing intersectionality

The DDA would be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes. In supporting people with disability, it is important to consider their holistic support needs or their layers of identity. This would be a contemporary approach to addressing discrimination if a person identifies with multiple diversity groups. This change would recognise the compounding effect of intersecting forms of discrimination and be consistent with Tasmania’s Disability Rights, Inclusion and Safeguarding Act 2024 definition and principle of intersectionality.

4

Amending the definition of direct discrimination

The Tasmanian Government noted recommendation 4.23 in our response to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission).

In addressing what test should be used to ensure that the definition of direct discrimination is understandable for both duty holders and people with a disability, The Tasmanian Government recommends consideration be given to replacing the comparator test, as finding a ‘standard’ to compare to is not always easy. The test could be replaced with one similar to that contained in the Equal Opportunity Act 2010 (Vic) which considers unfavourable treatment.

The burden of proof should not be about a person with disability having to provide proof of their disability if this has already been established in other systems, such as the National Disability Insurance Scheme (NDIS) or the Disability Support Pension. It is suggested that a similar approach to the Fair Work Act 2009 (Cth) is adopted. The burden should sit with the alleged perpetrator to prove that the treatment was not unfavourable in the circumstances.

Amending the definition of indirect discrimination

The Tasmanian Government noted recommendation 4.24 in our response to the Disability Royal Commission.

The Tasmanian Government is supportive of the reasonableness element in the definition of indirect discrimination being replaced by a legitimate and proportionate test. Both ‘reasonableness’ and ‘unjustifiable hardship’ are difficult concepts to define and there appears to be a low threshold for establishing them, making it easier for respondents to defend cases of indirect discrimination.

The removal of the ‘does not or would not comply’ requirement from the indirect definition would also be supported by Tasmania as it does not appear to add anything additional to the existing provisions in the DDA.

5

Interpreting the DDA in line with the UN CRPD

The Tasmanian Government noted recommendation 4.33 in our response to the Disability Royal Commission.

Tasmania’s Disability Rights, Inclusion and Safeguarding Act 2024 references the UN CRPD in both the objects and the principles of the Act.

The Tasmanian Government supports the DDA being expressly required to be interpreted in a way that is beneficial to people with disability, in line with human rights treaties.

6

Part 2 Positive Duty to Eliminate Discrimination

Positive duty for duty holders to eliminate discrimination

The Tasmanian Government noted recommendations 4.27 and 4.28 in our response to the Disability Royal Commission.

Tasmania suggests that if there was a positive duty in the DDA, it should apply to all current duty holders. It would be important that there is consideration of capacity, situation and resourcing. In line with the incorporation of a positive duty in the Sex Discrimination Act 1984, this would move the DDA from a complaints-based reactive instrument to a more proactive one.

In the Government context, positive duty should be supported by clear and thorough guidance, policies and measured outcomes. The role and the level of impact an agency has on people with disability should be accounted for. In the health context, for example, positive duty could be linked with National Safety and Quality Health Service Standards to avoid duplication.

Part 3 Encouraging Inclusion of People with Disability in Employment, Education and other areas of Public Life

Strengthening the duty to provide adjustments

The Tasmanian Government noted recommendations 4.25 and 4.26 in our response to the Disability Royal Commission.

The Tasmanian Government supports the creation of a stand-alone duty to provide adjustments to better assist people with disability and duty holders to understand their rights and obligations. This would clarify the obligations on duty holders and provide a specific ground for people with disability to make a discrimination complaint if a duty holder fails or refuses to make such adjustments.

The Tasmanian Government also supports removing the word ‘reasonable’ and creating an exception if the adjustment could result in unjustifiable hardship. It is possible that removing the word ‘reasonable’ from the term ‘reasonable adjustment’

7

could have unintended consequences. For example, it may lead discussion of adjustments to bypass positive opportunities and leaps to the ‘unjustifiable hardship’ discussion.

If the word ‘reasonable’ is removed, education and awareness training would be essential to shift understanding towards ‘unjustifiable hardship’. Tasmania would also support ensuring that duty holders are not responsible for circumstances outside their knowledge or control.

If the word ‘reasonable’ is retained, Tasmania proposes that there should be clarity within the DDA regarding the arbiter role for the determination of ‘reasonable’, given the concept of ‘reasonable’ is open to interpretation.

Extending the duty to other contexts, such as private interactions in public or in a person’s home would be difficult to monitor and regulate. A failure to comply with the duty would be difficult to prove.

Definition of and considerations for unjustifiable hardship

The Tasmanian Government noted recommendation 4.32 in our response to the Disability Royal Commission.

Tasmania’s preferred approach to achieving greater fairness and transparency in claims of unjustifiable hardship is the Disability Royal Commission amendment. This proposes to include additional factors that must be taken into account when applying the unjustifiable hardship test. This would provide balance and accountability for employers to demonstrate considerations.

The revised approach should include:

  • a requirement for documented evidence of consultation with the person or their parent/caregivers if a minor (such as in a school);
  • a requirement for a reasonable level of documentation (possibly in a national, state or agency approved format) to record the process and considerations in the pathway to determining if making a specific adjustment imposes unjustifiable hardship on duty holders, such as an employer or school; and
  • specific evidence of the other options considered to provide adjustments whilst also removing/reducing hardship.

Unjustifiable hardship should not be used to justify exclusionary discipline.

8

Expanding the factors considered by employers when determining if an employee can carry out the inherent requirements of particular work

The Tasmanian Government noted recommendation 7.26 in our response to the Disability Royal Commission.

Tasmania would welcome amendments to the DDA that support broad employment considerations in job design. When amending the DDA, it should be clear that:

  • consideration of the nature and extent of any adjustments is subject to the ‘unjustifiable hardship’ test; and
  • although consultation with the prospective or current employee could be beneficial, a person is not required to disclose medical or health information or prove their disability.

This would strengthen fairness, transparency, and inclusion in employment decisions. This would benefit both people with disability and employers by promoting informed, collaborative decision-making.

To support engagement between prospective or current employers and employees to better understand the inherent requirements of a job, Tasmania would support a requirement that employers articulate the inherent requirements of a job when positions are advertised.

Tasmania recommends clear guidance materials on inherent requirements, including clearer criteria, documentation and consideration of adjustments before determining a person’s ability to perform a job.

Exclusionary discipline and suspension

The Tasmanian Government accepted in principle recommendation 7.2 in our response to the Disability Royal Commission.

The Tasmanian Government supports an amendment of the DDA to define exclusion and exclusionary discipline. This would provide clarity for those using the legislation, which is particularly important given interpretation can differ between jurisdictions. It is also recommended that section 22(2)(b) of the DDA be amended to cover suspension and exclusion, as well as expulsion.

9

Any exceptions or limits on when exclusion is unlawful should align with procedural fairness and child rights under the United Nations Convention on the Rights of the Child (UNCRC) which are reflected in the Tasmanian Education Act 2016.

Exclusion from education settings must only be used as a last resort—not as a punitive measure, but as a temporary intervention to facilitate the development of appropriate supports. It should be applied only under clearly defined, strictly monitored conditions and subject to review external to the school. Decisions must be based on:

  • clear evidence of a serious risk to others;
  • exhaustion of reasonable supports and interventions, unless an immediate safety risk necessitates urgent action; and
  • proportionality and necessity to prevent serious harm.

In exceptional cases where a serious incident has occurred and before all supports are exhausted, it must be:

  • justified by imminent risk that cannot be mitigated through available strategies;
  • time-limited, with a plan for safe re-integration; and
  • accompanied by continued efforts to implement inclusive and trauma-informed supports.

The amendment must ensure alignment with procedural fairness, equity and the rights of the child under relevant legislation and policy.

In relation to whether a different approach to exclusionary discipline could be more appropriate in the higher education and vocational education and training sectors, the Tasmanian Government makes the following comments:

While the context of higher education and vocational education and training (VET) differ from school-based education, the rights of students with disability remain consistent across all sectors. Therefore, the following principles should apply universally:

  • exclusion must be a last resort, justified only by a serious and demonstrable risk of harm;
  • all reasonable adjustments and supports should be exhausted before exclusion is considered; and
  • independent review mechanisms must be in place to uphold procedural fairness.

Data collection and oversight should be mandated to monitor exclusion patterns and ensure accountability.

10

Part 4 Improving Access to Justice

Offensive behaviour and vilification protections

The Tasmanian Government noted recommendation 4.29 in our response to the Disability Royal Commission. In relation to recommendation 4.30, we noted part (a) of the recommendation and accepted in principle part (b). The Tasmanian Government understands that vilification of people because of their disability is an issue. We are undertaking work to understand how this recommendation would impact Tasmanian legislation.

The Tasmanian Government would support introducing the offence of ‘offensive behaviour’ modelled on the Racial Discrimination Act 1975 (Cth) (RDA) to the DDA to protect people with disability from offensive behaviour and/or harassment. Including exemptions similar to those in the RDA would also be supported.

Services provided by police officers

The Tasmanian Government noted recommendation 8.19 in our response to the Disability Royal Commission. We recognise the need to ensure that interactions between police and people with disability are guided by fairness, understanding, and appropriate safeguards.

Tasmania notes that these objectives are already reflected in existing legislative and policy frameworks in Tasmania, including the Disability Rights, Inclusion and Safeguarding Act 2024 (Tas) and the Anti-Discrimination Act 1998 (Tas), which collectively prohibit discrimination in the provision of government services, including policing.

In this context, Tasmania considers that further amendment to the Disability Discrimination Act 1992 (Cth) specifically to “cover policing” may not be necessary, provided that reforms continue to recognise the role of State-based protections and whole-of-government accountability mechanisms.

Tasmania Police already operate within a clear human-rights framework supported by the DPFEM Disability Inclusion Plan 2023–2027, which prioritises:

  • training and awareness to enhance officers’ understanding of disability rights and inclusive practice;
  • co-design and consultation with people with disability and advocacy organisations; and
  • monitoring and evaluation to ensure continuous improvement in service delivery.

11

Tasmania acknowledges the Disability Royal Commission’s focus on proactive obligations and supports efforts to strengthen protections for people with disability. Policing is an area with already stringent oversight, from legislative frameworks that prescribe certain behaviours and actions, to Codes of Conduct and the requirement for police members to wear body worn cameras and record their interactions with members of the public. Tasmania suggests that national reform focusing on system-level improvements may make more meaningful change for people with disability than additional statutory duties. Should any reform be pursued, this should ensure clarity of roles, avoid duplication, and recognise the need for consistency across agencies with statutory enforcement powers.

Tasmania does not propose specific exclusions in relation to policing or justice. In practice, policing activities in Tasmania are already subject to legislative and procedural safeguards that uphold fairness and non-discrimination, including under the Evidence Act 2001 (Tas) and the Anti-Discrimination Act 1998 (Tas).

The emphasis should remain on improving capability, training, and consistency across jurisdictions rather than narrowing coverage. Tasmania supports further national work to clarify operational guidance for police and justice agencies to ensure that the Disability Discrimination Act operates effectively and proportionately in enforcement contexts.

12

Part 5 Exemptions

The Tasmanian Government is supportive of consideration being given to removing the Migration exemption. In the context of health, it may be contributing to greater pressure on the health system in the medium to longer term. From the perspective of workplace relations, the Tasmanian Government is not aware of any challenges with current exemptions or special measures.

The Australian Human Rights Commission should have the power to grant special measure certificates through a clear and transparent process. Alternatively, more educative resources could be developed for businesses to lift awareness about the special measures’ exemption, the applicable criteria and how/when it applies.

It would be useful for a definition of special measures be added to the DDA. Some of the existing confusion stems from not understanding that special measures are a form of ‘permanent exemption’. It may be beneficial to bring these under one ‘exemption section’ or provide additional guidance material.

A definition of temporary exemptions being added would also be supported to resolve confusion between that and special measures. This could be supplemented with a definition of special measures within the same section if they are both intended to be a form of exempted activity.

13

Part 6 Modernising the Disability Discrimination Act

Assistance animals

To clarify the protections for assistance animals for both people with disability and duty holders, the Tasmanian Government suggests the following.

Evidence of training

There are currently inconsistencies between jurisdictions in relation to assistance animal accreditation and training, therefore a set of national standards for assistance animal accreditation and minimum standards for training would support and clarify protections.

Evidence or standards of hygiene and behaviour that are appropriate for a public place

A single national Public Access Test (PAT) would support and clarify the protections for assistance animals. However, a nationally consistent PAT should include testing around behaviours that could be harmful to native wildlife or vegetation, not just behaviours that relate to the assistance animal engaging with people and human-centric spaces like public transport and shops.

A mixture of legislative amendments and guidance material would be supported and increase the accessibility of information, as guidance material can be adapted to meet the different accessibility needs of the community. It should be recognised that legislation is useful, however it can be inflexible. The risk of inflexibility should be considered and where appropriate legislation should be complemented by non-regulatory instruments.

Further, the Tasmanian Government notes that it is also important to clarify expectations and reasonableness regarding children and young people with disability taking their assistance animals out in the community and school with/without a responsible adult animal handler.

The Tasmanian Government would support specific training organisations being prescribed under the Disability Discrimination Regulations, with greater direction on what training should include and ensuring that these training organisations are accessible across different states and territories. Consideration should be given to flexibility if an assistance animal is not trained by these organisations.

14

Disability action plans

It is currently voluntary to prepare and implement action plans under the DDA. Imposing minimum requirements for action plans may preclude defined entities from being able to register their action plans with the Australian Human Rights Commission. It would be supported to link the action plan process to Australia’s Disability Strategy.

The Tasmanian Disability Rights, Inclusion and Safeguarding Act 2024 prescribes timeframes for disability inclusion action plans for defined entities including development, publishing, reporting and lifespan.

Tasmania recommends that children and young people with a disability and/or their parents/carers have an active voice in the development of strategies which respond to their needs and experiences and in the implementation of associated actions.

Disability Standards

To improve compliance with and enforcement of the Disability Standards, additional plain English and easily accessible resources for training and understanding would be valuable. Greater promotion of the standards is needed and appointing an entity to have responsibility for monitoring, auditing and investigating compliance of the standards would also be supported. For example, in Tasmania the entity could be the Tasmanian Disability Commissioner.

It is highly desirable that any amendments to the DDA in relation to self-reporting on compliance with the Disability Standards would need to be in line with section 11 of Tasmania’s Disability Rights, Inclusion and Safeguarding Act 2024, which sets out requirements for progress reports against the Tasmanian Disability Inclusion Plan.

As disability action plans are not mandated under the legislation, a risk of requiring organisations to report on their compliance with the Disability Standards is that it may be perceived to add an additional reporting requirement that organisations not subject to the standards do not need to report on. This may discourage them from developing a disability action plan in the first place. Care would need to be taken to ensure this is framed in a way to make it clear that the standards exist to support organisations in complying with the Act and do not impose additional obligations. Overall, self-reporting is unlikely to achieve compliance unless there is a non-compliance mechanism in place.

Principle based guidance provided by the Australian Human Rights Commission to duty holders regarding how to self-report on the standards in disability action plans could be beneficial. It should include information on how children and young people with disability and/or their parents/carers had an active voice in:

  • the varied needs and experiences of children and young people with disability and the strategies that may be required in response to those needs and experiences.
  • implementation of actions to improve support for children and young people with disability.

Part 7 Further Options for Reform

The Tasmanian Government recommends the Tasmanian Disability, Inclusion and Safeguarding Act 2024 as a legislative example that could be drawn on to modernise and strengthen the DDA. The Tasmanian legislation provides recently drafted content to consider, especially regarding monitoring and reporting expectations.

Tasmania recommends clear guidance materials on who is considered a ‘duty holder’ under the DDA be developed and provided to the community.

To enable the DDA to remain fit for purpose, a formal review cycle would be valuable to ensure that the legislation remains relevant and effective in its intended ways.

Conclusion

The Tasmanian Government is grateful for the opportunity to make a submission to the DDA review. We believe that the comments provided will assist in strengthening and modernising the DDA. We encourage the Australian Government to consider the suggestions made in this submission and we welcome further engagement with the review as it progresses.