Submission on the Review of the Disability Discrimination Act 1992

Introduction

Thank you for the opportunity to make a submission in the review of the Disability Discrimination Act 1992 (Cth) (‘DDA’). In this submission, I intend to deal with the way the DDA currently fails to provide adequate protection for people with disability (‘PwD’) in online environments and factors relevant to the proposed changes outlined in the DDA Review Issues Paper (‘RIP’) that may positively affect these protections. I have a bachelor’s degree in criminology and justice and laws (Hons). I am also just beginning my PhD, and through my doctoral research, I intend to collect qualitative data on how PwD experience and are treated on online platforms through a discrimination law lens. This research expands on research I conducted through my honours dissertation, which considered how various domestic and international legislative instruments, including the Anti-discrimination Act 1991 (Qld), the DDA, and the Convention onthe Rights of Persons with Disabilities (‘CRPD’), protect PWD on social media. In addition to my academic background, I bring lived experience with a physical disability. Therefore, the submissions I intend to make within this paper will be influenced by my previous and current research or my own opinions supported by my experience.

Overall, this submission supports the review of the DDA, and the proposed amendments aimed at aligning the DDA with the CRPD. It also endorses the changes designed to address harassment, vilification, and offensive behaviours as they occur on social media and other online contexts. However, this submission emphasises the importance of ensuring that reforms relating to discrimination are also more broadly considered to ensure that they effectively capture and address online forms of discrimination, so that the DDA remains responsive to digital environments where PwD increasingly participate.

Current Legal Framework for Digital Environments

The DDA is a vital piece of legislation designed to eliminate, as far as possible, discrimination against PwD and ensure their equal participation in specific areas of public life. The objects of the DDA make clear that its purpose extends across critical domains such as employment, education, access to premises, and the provision of goods and services. However, despite these broad provisions, significant gaps remain in the DDA’s application to online environments. The DDA is a product of its time, drafted in a pre-social media era and therefore is not presently equipped to address the complex and pervasive nature of digital environments that now shape almost every aspect of daily life. The limitation is particularly concerning for PwD, given at times, the central role it plays as a communicative, support, and advocacy tool. At present, the DDA provides that it is unlawful for a

• Australian Bureau of Statistics, ‘Use of Information Technology by People with Disability, Older People and Primary Carers’ (Web Page, 2020) <https://www.abs.gov.au/articles/use-information-technology-people-disability-older-people-and-primary-carers>.

• Disability Discrimination Act 1992 (Cth) s 3 (‘DDA’).

• Ibid, ss 15, 22, 23, 24.

• Stefan Galfgren, Jens Ineland and Coppélie Cocq, ‘Social media and disability advocacy organizations: caught between hopes and realities’ (2019) 37(7) Disability and Society 1088-1089; Darren Chadwick, Caroline Wesson and Chris Fullwood, ‘Internet Access by People with Intellectual Disabilities: Inequalities and Opportunities’ (2013) 5(3) Inequality in the Digital environment 385.

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Application of Act

12. The limited application provisions have effect in relation to discrimination in the course of, or in relation to, trade or commerce:

• (a) between Australia and a place outside Australia; or
• (b) among the States; or
• (c) between a State and a Territory; or
• (d) between 2 Territories.

While this provision within the DDA technically can extend to certain online contexts, such as where a person or business operating or selling within Australia supplies goods or services through digital platforms,* its scope remains insufficient to address discrimination that occurs online outside of these contexts. For example, instances of comments on social media platforms that amount to discrimination or exclusionary conduct by users, groups, or social media platforms themselves. Domestic data relating to whether and in what capacity PwD encounter and experience discrimination in online contexts remains limited. However, international evidence indicates that PwD regularly encounter hostility on social media, including hate speech, harassment, and exclusionary actions.° The Online Safety Act 2021 (Cth) (‘OSA’) offers an additional, albeit limited, layer of protection. The OSA primarily focuses on the removal of cyberbullying material, illegal content, and content that could cause serious harm to individuals.?° The OSA also allows individuals to make complaints about “cyber-bullying material” and enables the eSafety Commissioner to issue removal notices, negotiate with platforms, and impose penalties on non-compliant providers.¹¹ However, there are significant gaps in the OSA’s capacity to protect adults with disability in broader online contexts. The OSA is largely reactive, addressing content only after harm has occurred and placing a cumbersome burden on PwD to bring forward a complaint.¹² Together, the DDA and the OSA highlight a legislative landscape that is fragmented and incomplete when it comes to online environments. While the DDA addresses discrimination in trade, services, and facilities, and the OSA addresses certain harmful content online, neither fully captures

the systemic, structural, and pervasive nature of online discrimination experienced by or potentially

5 DDA (n 2) s 24.

© Ibid.

7 Ibid, s 12.

8 Ibid.

9 Sharon Heung, ‘Towards Addressing Ableism on Social Media’ (conference paper, conference on Computer-Supported Cooperative Work and Social Computing, 2024) 24; Sharon Heung et al. “Ignorance is not Bliss”: Designing Personalized Moderation to Address Ableist Hate on Social Media’ (2025).

10 Online Safety Act 2021 (Cth) s 4 (OSA); Australian Government, ‘Learn About the Online Safety Act’ (Web Page, 2025) <https://www.esafety.gov.au/newsroom/whats-on/online-safety-act>.

11 OSA (n 10) ss 4, 27, 28, 30, 31, 65, 161.

12 Australian Human Rights Commission, ‘Complaints Under the Disability Discrimination Act’ (Web Page, 2025) <https://humanrights.gov.au/complaints/complaint-guides/complaints-under-disability-discrimination-act>.

directed to PwD. This gap underscores the need for legislative reform that explicitly recognises online environments as critical sites of participation and communication for PwD.

The DDA and the CRPD

The purpose of the CRPD is to promote, protect, and ensure that all PwD can fully and equally enjoy all human rights and fundamental freedoms, including their participation and expression on internet platforms. Of relevance to online platforms are articles 9 and 30:

Article 9 — Accessibility

To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:

• Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;

• Information, communications and other services, including electronic services and emergency services.

Article 9 of the CRPD ensures that PwD have access, on an equal basis with others, to information and communications, including information and communications technologies and electronic services. This provision recognises that digital environments such as websites, online platforms, e-learning systems, and government portals are essential spaces for participation, expression, and access to services. The Committee on the Rights of Persons with Disabilities, in general comment No. 2, provides that: “While different people and organizations understand differently what information and communications technology (ICT) means, it is generally acknowledged that ICT is an umbrella term that includes any information and communication device or application and its content.”

Article 30 — Participation in cultural life, recreation, leisure and sport

States Parties recognize the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:

• Enjoy access to cultural materials in accessible formats;
• Enjoy access to television programmes, films, theatre and other cultural activities, in accessible formats;

13 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515, UNTS 3 (entered into force 3 May 2008) Preamble (‘CRPD’).

14 Ibid, Art 9.

15 Ibid.

16 United Nations Committee on the Rights of Persons with Disabilities, General Comment No. 2 on Accessibility, Published 22 2014, CRPD/C/GC/2.

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c. Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance.

Article 30 recognises the right of PwD to engage in cultural, recreational, and leisure activities on an equal basis with others.*” While the article often refers to physical spaces such as theatres, museums, and sports venues, its scope also arguably extends to cultural content and experiences that are increasingly delivered or accessed online. In contemporary society, social media has become one of the primary avenues through which people participate in cultural life.1® Platforms such as Facebook, Instagram, TikTok, and X (formerly Twitter) are not merely communication tools, they are spaces where cultural expression, community building, and public discourse occur.

It is therefore important that the DDA explicitly gives effect to the CRPD because the Convention sets out the framework for ensuring the full and equal participation of PwD in all areas of life, including digital and online environments.

The questions raised in the DDA Review Issues Paper

In this section, this submission will respond to selected consultation questions raised in the RIP. It does not address every question in the paper; rather, it focuses on those most relevant to online harassment, offensive conduct, and discrimination against PwD in online spaces. Additional questions of particular relevance or importance to the author are also considered. The aim is to provide a targeted and meaningful contribution to the review process.

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

It is agreed that the definition of disability should move away from deficit-based language and reflect a social and human rights model of disability. The current definition of disability in the DDA is reasonably comprehensive and, for the most part, captures a wide range of conditions, impairments, and circumstances.® However, language such as ‘malfunction,’ ‘disorder,’ and ‘disease,’ ?° reflect an outdated and medicalised framing that uses offensive and stigmatising language. By contrast, the CRPD describes disability as an evolving concept that arises from the “interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.”! The CRPD framing shifts the focus away from individual deficits and towards the responsibility of society to remove barriers. With reference to the proposalto refer to the CRPD in the DDA,”” the adoption of language found in the CRPD to move toward consistency, clarity, and more appropriate language.

Additionally, retaining the term “disability” rather than replacing it with “impairment” within the DDA would promote consistency across domestic and international legal frameworks. The term “disability”

17 CRPD (n 13) Art 30.

18 Australian Government: eSafetyresearch, The Digital Lives of Aussie Teens (Report, February 2021) 7-8; Australian Government: Australian Communications and Media Authority, Communications and Media in Australia Series: How we Communicate (Report, December 2022) 3-5.

19 DDA (n 2) s 4.

20 Ibid, s 4.

21 CRPD (n 13) Preamble.

22 Australian Government, Attorney-General’s Department, Disability Discrimination Act 1992 Review Issues Paper, 2025, 38.

5. What test should be used to ensure that the definition of direct discrimination is easy to understand and implement for both duty holders and people with disability, and why?

The DDA defines direct discrimination as occurring when, because of a person’s disability, they are treated less favourably than a person without that disability would be treated in circumstances that are not materially different.** It also encompasses situations in which a failure to make reasonable adjustments results in such less favourable treatment.?° This definition employs a two-step test, requiring both a comparator and a clear causal connection between the differential treatment and the person’s disability. However, even prior to considering online environments, these provisions are arguably too narrow in scope to adequately capture or address instances of discrimination occurring

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

The following factors should be considered when considering the definition of disability:

• Ensuring consistency with the CRPD, this is particularly important if the CRPD is to be interpreted alongside the DDA, the definition should recognise disability as arising from the interaction between an individual and societal barriers; and

• A shift toward a human rights and social model focus; and

• Avoiding deficit language; and

• The perspectives of PwD should inform the development of the definition; and

• Ensuring a balanced scope, this would mean ensuring that the definition of disability is sufficiently broad to capture diverse disabilities, but not so broad that it unintentionally encompasses conditions that do not or should not constitute disabilities.

is already embedded in key Australian legislation and policy, including the National Disability Insurance Scheme Act 2013 (Cth), the Disability Services Act 1986 (Cth), and the Australian Disability Strategy 2021-2031. It also preserves terminology used within the CRPD, which explicitly refers to “persons with disabilities.”2? Finally, substituting “disability” with “impairment” could unintentionally signal that disability is a term to be softened or avoided, thereby perpetuating stigma and undermining disability as a legitimate and valued aspect of human experience.

It is submitted that the definition of disability within the DDA should be revised to explicitly reference impairment. This is because a definition of disability that references “a person with a disability” lacks sufficient legislative clarity. An example of such a definition is:

Disability, in relation to a person, means:

Disability means the presence of an impairment, whether physical, intellectual, psychiatric, sensory, neurological, or other, that substantially limits one or more major life activities, either presently or in the future, or which has the effect of limiting a person’s full and effective participation in society on an equal basis with others.

Submission on the Disability Royal Commission’s Recommendations

This submission supports the implementation of the Disability Royal Commission’s (‘DRC’) recommendations that the DDA be amended to remove the need for a comparator and instead realign the focus to be on the detriment suffered by the PwD.

A detriment-based test would simplify the legal framework, making it more accessible and understandable to both PwD and duty holders, and would align with the underlying purpose of the DDA and CRPD.

It is further submitted that while these proposed amendments represent a positive development, further consideration is required to ensure that the reformed definition of direct discrimination adequately captures contemporary and emerging forms of discrimination, particularly those occurring in online environments. Certain types of online discrimination, such as algorithmic bias,²⁸ automated content moderation,²⁹ and systemic exclusion by digital platforms may not fall neatly within a detriment-based test that presumes a direct human actor. For example, in 2019, TikTok’s content moderation guidelines reportedly instructed moderators to limit the visibility of videos posted by users with “facial disfigurement,” “autism,” or “down syndrome,” purportedly to “protect” these users from bullying.

While the company later withdrew these guidelines, this incident demonstrates that discrimination against PwD can occur systemically, through platform design and algorithmic processes, rather than through explicit acts of less favourable treatment by a specific person. At present, the DDA offers no clear mechanism for addressing such structural or technology-driven discrimination, due in part to jurisdictional limitations and the narrow framing of direct and indirect discrimination provisions. Some progress has been made through the OSA, which provides certain protections against cyber-abuse, and through reforms to defamation law.

Section 46 of the OSA establishes core expectations for service providers, including social media platforms:

46 —Core Expectations

(a) the expectation that the provider of the service will take reasonable steps to ensure that end-users are able to use the service in a safe manner;

(b) the expectation that, in determining what are such reasonable steps, the provider will consult the Commissioner;

(c) the expectation that the provider of the service will take reasonable steps to minimise the extent to which the following material is provided on the service:

(i) cyber-bullying material targeted at an Australian child; (ii) cyber-abuse material targeted at an Australian adult; (iii) a non-consensual intimate image of a person; (iv) class 1 material; (v) material that promotes abhorrent violent conduct;

²⁶ Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62.

²⁷ Disability Royal Commission, ‘Realising the human rights of people with disability’, Final Report, 2023, Volume 4, p 300.

²⁸ Nizan Packin, ‘Disability Discrimination Using Al Systems, Social Media, and Digital Platforms: Can We Disable Digital Bias?’ (2021) 8(2) Journal of International and Comparative Law 487.

²⁹ Chris KOver and Markus Reuter, ‘TikTok curbed reach for people with disabilities’ Netzpolitik.org (online, December 2 2019) <https://netzpolitik.org/2019/discrimination-tiktok-curbed-reach-for-people-with-disabilities/>.

³⁰ Ibid.

³¹ OSA (n 10) ss 6-8, 27; Fairfax Media Publications Pty Ltd v Voller [2020] NSWCA 102.

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— PAGE TEXT START — (vi) material that incites abhorrent violent conduct; (vii) material that instructs in abhorrent violent conduct; (viii) material that depicts abhorrent violent conduct;

However, these frameworks are not disability-specific and do not directly address discriminatory decision-making or systemic digital exclusion. The introduction of a similar, disability-specific provision within the DDA could serve as both a legislative “call to action” and a signal for a broader cultural shift, compelling online platforms and service providers to proactively consider the prevention of discrimination.

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

This submission supports amending the DDA to shift the burden of proof, consistent with the DRC’s recommendation and the approach adopted under section 136 of the UK Equality Act 2010. Under this model, once a complainant establishes facts from which discrimination can reasonably be inferred, the burden would shift to the respondent to demonstrate that the treatment was not because of disability and was otherwise lawful. Such an amendment would help address the significant evidentiary imbalance that currently exists under the DDA, where PwD are often required to prove both the fact of unfavourable treatment and the respondent’s motive or reasoning.

The imbalance in the evidentiary burden in the DDA is particularly pronounced in online and digital contexts, where decision-making processes are often unclear and controlled by large technology companies, digital platforms, or automated systems. PwD are unlikely to have access to internal policies, algorithmic criteria, or moderation data that might reveal whether discriminatory bias or systemic disadvantage informed a particular decision or pattern of treatment. In these settings, a shifting burden of proof would promote transparency and accountability, requiring respondents such as online platforms, service providers, or employers to produce evidence explaining the rationale for their actions. For example, if a social media platform removes or suppresses content posted by a user with disability, it should bear the onus of demonstrating that the action was based on lawful criteria and not influenced by the individual’s disability.

7. How could the definition of indirect discrimination be amended to ensure that it is easy to understand and implement for people with disability and duty holders?

Section 6 of the DDA provides: 6 — Indirect Disability Discrimination

(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

32 Equality Act 2010 (UK) s 136.

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With reference to subsection (1)(a), it is submitted that the provision should be expanded to encompass other constructs, such as rules, policies, practices, and guidelines. Presently, the wording that provides for an aggrieved personto comply witha “requirement or condition” may be interpreted too narrowly. The courts have previously emphasised that the words “requirement or condition” should be construed broadly, so as to “cover any form of qualification or prerequisite.”4

The DRC’s recommendation to remove both the “inability to comply” and “reasonableness” elements from the current test for indirect discrimination has merit. These elements have been widely recognised as unclear, conceptually complex, and inconsistent with a substantive equality approach. In practice, the “inability to comply” requirement imposes an artificial threshold that fails to capture the nuanced ways in which PwD experience disadvantage. Similarly, the “reasonableness” element has been shown to tilt the balance of the law toward the respondent, allowing duty holders to justify indirectly discriminatory requirements on the basis of administrative convenience, cost, or commercial priorities. As the DRC observed, this undermines the protective purpose of the DDA by transforming what should bea question of equality and access into a question of justification and defence. Removing these elements would simplify the legal test and refocus it on the impact ofa rule, policy, or practice on PwD, rather than the intentions or justifications of the respondent. This approach is consistent with the CRPD.

8. Should the reasonableness element in the definition of indirect discrimination be: a. removed b. retained and supplemented with a list of factors to consider, c. replaced by a legitimate and proportionate test d. other

Option (a) —the removal of the reasonableness element from the definition of indirect discrimination, should be a preferred approach. It is well accepted that PwD may require differential treatment in order to achieve equality with persons without disability.*° A substantive equality approach recognises that identical treatment does not necessarily result in equal outcomes and instead imposes an obligation to provide accommodations that respond to individual needs and barriers.?° This approach is reflected in the CRPD, which defines reasonable accommodation as:

“Necessary and appropriate modification and adjustments not imposing a disproportionate or due burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”?’

This definition provides a clearer and more balanced framework than that currently provided under the DDA. In contrast, the inclusion of “reasonableness” within the indirect discrimination test has

33 DDA (n 2) s 6.

34 Waters v Public Transport Corporation (1991) 173 CLR 349, 393 (Dawson and Toohey JJ), 406-407 (McHugh J); Catholic Education Office v Clarke (2004) 138 FCR 121, 143 [103]; Daghlian v Australian Postal Corporation [2003] FCA 759, [110]; Hinchliffe v University of Sydney (2004) 186 FLR 376, 395 [107]; Trindall v NSW Commissioner of Police [2005] FMCA 2, [175].

35 The principle was stated by Ronald Wilson in the Equal Opportunity Commission in AJ & J vA School (No 1), (1998) EOC 92-948, 78,313, underpins the approach adopted in the Convention on the Rights of Persons with Disabilities.

36 Disability Royal Commission (n 27) 306-310.

37 CRPD (n 13) Art 2.

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

This submission supports the inclusion of the CRPD in the objects provision of the DDA. Doing so would represent a significant symbolic step, reinforcing Australia’s commitment to aligning domestic law with its international human rights obligations and promoting a rights-based approach to disability equality.

However, the inclusion of the CRPD in the objects clause alone would be unlikely to deliver substantive change due to the narrow way that courts interpret objects clauses.

To give the CRPD practical effect within the DDA, legislative amendments should ensure that all provisions of the DDA are interpreted and applied consistently with the CRPD’s principles. Accordingly, it is submitted that, in addition to referencing the CRPD in the objects clause, explicit provisions should be inserted into the DDA to give operative effect to the CRPD’s principles and obligations.

11. Should the Disability Discrimination Act be expressly required to be interpreted in a way that is beneficial to people with disability, in line with human rights treaties?

Yes, the DDA should be expressly required to be interpreted in a way that is beneficial to PwD, consistent with Australia’s obligations as a signatory under the CRPD.

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

This submission supports the introduction of an explicit positive duty into the DDA and asserts that this duty should apply to all duty-holders across all contexts, including digital and online contexts. In the online environment, this should mean that platforms should be required to proactively identify, prevent, and remove discriminatory material as in the requirement under the OSA.

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

There should be no exceptions or limits to the application of a positive duty. Equality, accessibility, and inclusion are universal human rights, not conditional or discretionary obligations. Introducing exceptions would risk undermining the purpose of the duty and perpetuating systemic discrimination, particularly in environments where exclusion is already entrenched.

27. How could the Disability Discrimination Act be amended to protect people with disability from offensive behaviour and/or harassment?

It is submitted that new provisions should be introduced into the DDA to make it unlawful to engage in offensive behaviour or harassment on the basis of disability, including within online environments. Currently, sections 35-39 of the DDA make harassment unlawful in specific contexts, including employment, education, and the provision of goods and services. *° However, the DDA does not provide a definition of harassment, which limits its effectiveness and creates uncertainty about the scope of protection. As a result, many forms of ableist, offensive, or intimidating conduct, particularly those occurring online, are unlikely to be adequately captured under the existing provisions. It is therefore recommended that a clear statutory definition of harassment be introduced into the DDA. This definition should recognise that repeated or sustained behaviour is not required for conduct to amount to harassment, provided that a single act is sufficiently serious to meet an objective threshold of harm. This is particularly important in online contexts, where a single post, image, or message can have a widespread and enduring impact.

A new provision should also extend the prohibition against harassment and offensive behaviour to all areas of public life and any interaction where a PwD engages with others, rather than limited protection to specific contexts such as employment, education, orthe provision of goods and services. This protection should apply equally to interactions occurring in person and through digital or online means.

Furthermore, it is submitted that ‘public life’ should be expressly defined within the DDA to encompass both physical and digital environments. This would ensure that the DDA clearly applies to interactions occurring through online platforms, social media, and other digital services. However, care should be taken in selecting the appropriate definitions, see further discussion in questions 28 and 29 of the RIP.

28. If the Disability Discrimination Act were to prohibit offensive behaviour and/or harassment, how should these terms be defined?

The DRC has recommended that a new provision, which prohibits offensive behaviour and/or harassment, be modelled on section 18C of the Racial Discrimination Act 1975 (Cth) (‘RDA’).*2 Section 18C provides:

18C - Offensive behaviour because of race, colour or national or ethnic origin (1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person ora group of people; and

40 DDA (n 2) ss 35-39. 41 Racial Discrimination Act 1975 (Cth) s 18C (‘RDA’).

(b) the act is done because of the race, colour or national or ethnic origin of the other person

or of some or all of the people in the group.

(2) For the purposes of subsection (1), an act is taken not to be done in private if it:

• (a) causes words, sounds, images or writing to be communicated to the public; or
• (b) is done in a public place; or
• (c) is done in the sight or hearing of people who are in a public place.

(3) In this section:

“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

While section 18C provides a clear model for addressing public acts of offensive behaviour, its focus on conduct occurring “otherwise than in private” renders it insufficient in the context of modern, digital communication. For example, offensive behaviour occurring through direct messages, private chat groups, and closed online communities may not be captured under a provision limited to public acts.

In contrast, the OSA adopts an effect-based approach, focusing on the nature and impact of the conduct rather than whether it occurred publicly. For example, section 7 defines cyber-bullying material targeted at an Australian child as material provided on a social media, electronic, or internet service where:

(b) an ordinary reasonable person would conclude that:

(i) it is likely that the material was intended to have an effect on a particular Australian child; and

(ii) the material would be likely to have the effect on the Australian child of seriously hreatening, seriously intimidating, seriously harassing, or seriously humiliating the child. ⁴

This approach recognises that the harm caused by digital conduct depends on its effect, not its setting, and that serious harassment or humiliation can occur in both public and private contexts.

The recent decision in Dennis v Smith ⁴³ demonstrates the limitations of relying on state-based legislation to address offensive or harassing conduct. In that case, Riley Dennis successfully challenged social media posts made by Kirralie Smith, which the court found capable of satisfying vilification. ⁴⁴ The proceedings raised constitutional arguments about whether section 38S of the Anti- Discrimination Act 1997 (NSW) placed a disproportionate burden on political communication, ⁴⁵ highlighting the uncertainty that can arise when there are no uniform commonwealth protections.

Accordingly, when crafting new provisions for the DDA, definitions should:

⁴² OSA (n 10) s 7.

⁴³ [2024] NSWCATAD 91.

⁴⁴ Ibid.

⁴⁵ Ibid.

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29. Should there be exemptions for any behaviour, similar to the Racial Discrimination Act?

This submission acknowledges that, in some circumstances, limited exemptions may be appropriate to protect freedom of expression, consistent with the approach in section 18D of the RDA. Section 18D provides that conduct done “reasonably and in good faith” in the course of artistic work, academic or scientific discussion, or in making a fair and accurate report does not constitute unlawful racial discrimination. Applying a comparable approach under the DDA could ensure that legitimate activities are not inadvertently constrained. As is provided by the RDA⁴⁶ some examples of legitimate activities could include:

• Artistic or cultural expression that explores disability issues in a constructive or educational context.
• Academic or scientific research and discussion, including publication of findings on discrimination, systemic barriers, or societal attitudes toward PwD.
• Journalistic reporting that is fair, accurate, and conducted in good faith.

51. Are there any other issues with the Disability Discrimination Act that should be considered as part of this review?

Any additional issues with the DDA have been addressed throughout this submission, particularly in relation to legislative gaps in protecting PwD in online contexts, the need for clearer definitions of harassment and offensive behaviour, and the broader alignment of the Act with international human rights standards, including the CRPD.

Conclusion

The DDA is a vital piece of legislation, but more than thirty years on, it no longer provides adequate protection for PwD, particularly in online environments. Ableist harassment, offensive behaviour, and systemic barriers continue to restrict participation, while the burden of seeking redress often falls on individuals who lack the resources or capacity to gather evidence. Reform is urgently needed. The DDA must move from a reactive, complaints-based system to a proactive, rights-focused framework that covers both physical and digital spaces, aligns with the CRPD, and addresses the full range of discrimination and harassment. A modernised DDA would bring definitions and provisions in line with CRPD, embed systemic accountability to prevent discrimination and other forms of harm, and ensure protections work across all areas of public life, including online.

⁴⁶ RDA (n 41) s 18D.