Disability Discrimination Act 1992 (Cth) Review

Submission to the Attorney-General’s Department

14 November 2025

Contents

Overview | 5

• Summary | 5
• Recommendations | 6

1 Introduction | 11

2 Human Rights Framework | 12

• The United Nations Convention on the Rights of Persons with Disabilities (CRPD) | 12
• Disability Discrimination Act interpretation clauses | 15
• CRPD Independent Monitoring Mechanism | 17
• Australia’s Human Rights Framework | 18
• Intersectional discrimination | 20
• Complaints handling and the requirement to notify of adverse allegations | 22

3 Definitions of discrimination and defences | 23

• Direct discrimination | 23
• Indirect discrimination | 29
• Duty to provide adjustments | 31
• Offensive behaviour and vilification protections | 34
• Unjustifiable hardship | 40
• Inherent requirements of particular work | 43

4 Positive duty to eliminate discrimination | 45

• Costs and benefits of a positive duty | 46
• The scope of the proposed positive duty | 47
• Staged approach to implementation | 50
• Regulatory landscape | 51
• Strengthening the Commission’s regulatory powers | 52
• Resourcing regulation of the positive duty | 54

5 Exemptions and co-regulatory mechanisms | 55

• Permanent exemptions | 55
• Temporary exemptions | 57
• Co-regulatory mechanisms | 59
• Disability Standards | 63

6 Definitions | 67

• Definition of Disability | 67
• Exclusionary discipline and suspension | 69

Assistance animals | 70

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth) | 72

• The positive duty in the Sex Discrimination Act | 72
• Strengthening the Commission’s regulatory powers | 75
• Enhancing regulatory coordination: The Commission’s collaborative approach to positive duty implementation | 81

Endnotes | 83

About the Australian Human Rights Commission

The Australian Human Rights Commission is Australia’s National Human Rights Institution (NHRI). We are established and operate in accordance with federal legislation.

Our vision is an Australian society where human rights are respected, promoted and protected and where every person is equal in dignity and rights.

The Commission’s key functions include:

• Access to justice: We help people to resolve complaints of discrimination and human rights breaches through our investigation and conciliation services.
• Fairer laws, policies and practices: We review existing and proposed laws, policies and practices and provide expert advice on how they can better protect people’s human rights. We help organisations to protect human rights in their work. We publish reports on human rights problems and how to fix them.
• Education and understanding: We promote understanding, acceptance and public discussion of human rights. We deliver workplace and community human rights education and training.
• Compliance: We are the regulator for positive duty laws requiring employers and others to address sexual harassment, sex discrimination and other unlawful conduct.

Australian Human Rights Commission www.humanrights.gov.au

ABN 47 996 232 602

For general enquiries, call us on redacted.

For complaints, call us on redacted.

For TTY, call redacted.

Overview

Overview

Summary

The Australian Human Rights Commission (the Commission) welcomes the opportunity to provide a submission to the Attorney General’s Department Review of the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act). This submission addresses how the Act can be harmonised, simplified, and modernised to remove barriers faced by people with disability.

This submission responds to the relevant recommendations from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, all the while making a strong call for harmonisation of the 4 federal discrimination laws. Currently, the laws operate in different ways and contain different protections, even though a person can experience discrimination in many ways which relate not just to their disability but also their age, race, sex, gender and / or sexuality. Throughout the submission, the Commission identifies provisions and legal standards that should be made consistent in all 4 laws to better protect people from discrimination and to minimise the complexity and burden for organisations and people who must comply with the laws (duty holders). Other harmonising changes are identified to create a greater connection between the United Nations Convention on the Rights of Persons with Disabilities and the Disability Discrimination Act.

Some legal tests in the Disability Discrimination Act should be simplified: the tests for direct and indirect discrimination, the introduction of a standalone duty to provide adjustments and new provisions to encourage greater consultation with people with disability. Drawing on our Equality at Work project, we highlight the continued need for flexibility and innovation to respond to contemporary employment contexts in how inherent requirements of work are defined in the Act. The issue of how best to respond to harassment and vilification, including in online spaces, is addressed. This submission also responds to questions about how disability should be defined, how to most effectively prevent the use of exclusionary discipline in schools, and how to afford equal protections with regards to assistance animals.

Finally, the Disability Discrimination Act needs to be modernised to better respond to the challenges faced by people with disability. The most significant recommendation in this submission is for the introduction of a positive duty to eliminate discrimination in all areas of public life protected under the Disability Discrimination Act. A positive duty would mean that duty holders have to take proactive and reasonable steps to prevent disability discrimination from occurring, rather than responding reactively after harm occurs. Based on our

Australian Human Rights Commission 5

Overview

experience in regulating the positive duty under the Sex Discrimination Act 1984 (Cth), we highlight the importance for such a duty to be supported by strong regulatory functions and powers and through enhancements to co-regulatory mechanisms in the Act, such as special measures and Disability Action Plans.

Recommendations

1. Section 3 of the Disability Discrimination Act 1992 (Cth) should be amended to insert a new object to give effect to Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities.
2. The United Nations Convention on the Rights of Persons with Disabilities should be included as a Schedule to the Disability Discrimination Act 1992 (Cth).
3. Section 4 of the Disability Discrimination Act 1992 (Cth) should be amended to insert a new provision for the Act to be interpreted in a way that is beneficial to people with disability, to the extent that it is possible to do so consistently with the United Nations Convention on the Rights of Persons with Disability, the International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights.
4. The Australian Human Rights Commission Act 1986 (Cth) should be amended to formally designate the Australian Human Rights Commission as the independent monitoring mechanisms for the purposes of Article 33(2) of the United Nations Convention on the Rights of Persons with Disabilities.
5. The Australian Government should introduce a national Human Rights Act in order to fully meet Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities.
6. The Australian Government should harmonise federal discrimination laws to ensure consistency in their operation.
7. A new provision should be added across all federal discrimination laws that identifies that discrimination may occur on the basis of a particular protected attribute ‘or a particular combination of 2 or more protected attributes’ covered under the 4 federal discrimination laws.
8. Section 46PF(7)(c) and 46PF(9) of the Australian Human Rights Commission Act 1986 (Cth), requiring the Commission to notify people of adverse allegations, should be removed.
9. Section 5(1) of the Disability Discrimination Act 1992 (Cth) should be amended to replace the ‘comparator test’ with a ‘detriment test’, in direct discrimination.

Australian Human Rights Commission 6

Overview

10. Section 5(1) of the Disability Discrimination Act 1992 (Cth) should be amended to shift the burden of proof for establishing that less favourable treatment was because of a person’s disability to respondents, once a prima facie case is established.
11. Section 6(1)(b) of the Disability Discrimination Act 1992 (Cth) should be removed.
12. Section 6(3) of the Disability Discrimination Act 1992 (Cth) should be amended to replace the ‘reasonableness’ test for the condition or requirement imposed with a ‘legitimate and proportionate’ test.
13. A standalone duty to provide adjustments for people with disability should be introduced in the Disability Discrimination Act 1992 (Cth).
14. Section 4 of the Disability Discrimination Act 1992 (Cth) should be amended to remove the word ‘reasonable’ from the definition of ‘reasonable adjustments’.
15. Sections 35, 37 and 39 of the Disability Discrimination Act 1992 (Cth) should be replaced with offensive behaviour provisions in the same terms, and similar exemptions, as sections 18C and 18D of the Racial Discrimination Act 1975 (Cth).
16. Section 11 of the Disability Discrimination Act should be amended to insert the following additional considerations: (1)(aa) the nature and extent of the first person’s consultations with any person with disability concerned; (ab) the first person’s consideration of all available and appropriate alternative measures or actions.
17. Section 11 of the Disability Discrimination Act should be amended to insert a requirement for duty holders to provide reasons, if requested, for contending that unjustifiable hardship existed at the time of alleged unlawful discrimination.
18. Section 21A(2) of the Disability Discrimination Act 1992 (Cth) should be amended to include 2 additional factors to be taken in account:
    • the nature and extent of any adjustments made
    • the extent of consultation with any person with disability concerned.
19. The Disability Discrimination Act 1992 (Cth) should be amended to introduce a positive duty on all duty-holders under the Act to eliminate disability discrimination, harassment and victimisation as far as possible. The positive duty should be modelled on the positive duty in the Sex Discrimination Act 1984 (Cth).
20. The implementation of the positive duty to eliminate discrimination in the Disability Discrimination Act 1992 (Cth) should be staged across 18 months.

Australian Human Rights Commission 7

Overview

21. The Disability Discrimination Act 1992 (Cth) amendments should include a statutory requirement for review of the implementation of the positive duty within 5 years of commencement.
22. Civil penalties for breach of the positive duty should be introduced into the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth).
23. Penalties for non-compliance or ‘interference’ with the Commission’s administration and enforcement of the positive duty in the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) should be increased.
24. The Australian Human Rights Commission Act 1986 (Cth) should be amended to provide the Australian Human Rights Commission with information-gathering powers to monitor and enforce compliance with the positive duty in the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) prior to a formal inquiry commencing.
25. The Australian Human Rights Commission Act 1986 (Cth) should be amended to enable better information sharing with other regulators and the public. The scope of these amendments should be considered and informed by the independent review of the positive duty in the Sex Discrimination Act 1984 (Cth) due to commence in 2026.
26. Adequate and sufficient funding should be provided to the Australian Human Rights Commission as regulator of the duties in the Disability Discrimination Act 1992 (Cth). Funding should allow for the development of required guidance, including to undertake consultation.
27. The Disability Discrimination Act 1992 (Cth) should be amended to introduce a requirement for permanent exemptions in sections 46-54 to be reviewed every 10 years, having regard to the following:
    • whether the scope of the exemption remains necessary, reasonable and proportionate in the circumstances.
    • whether the exemption should be
      • continued or removed, and
      • if continued, be time limited and regularly reviewed, or be sunsetted.
    • Australia’s international human rights obligations, giving specific regard to the United Nations Convention on the Rights of Persons with Disabilities.

The first such review of permanent exemptions should occur at the commencement of these legislative amendments.

Australian Human Rights Commission 8

Overview

28. The Disability Discrimination Act 1992 (Cth) should be amended to replace references to permanent exemptions with new terminology of ’exceptions’ to be defined as ’conduct which, but for the operation of the excepting provision, would be unlawful discrimination, but is permanently excepted from being considered such in the relevant Act’.
29. The Disability Discrimination Act 1992 (Cth) should be amended to define ’temporary exemptions’ as ‘temporary permissive authorisation for conduct which, but for the operation of the exemption, would be unlawful’.
30. Section 45 of the Disability Discrimination Act 1992 (Cth) should be amended to clarify that the interpretation of what amounts to a special measure be aligned with the understanding of this term under international law and, in particular, that special measures be construed as positive measures to address disability.
31. The Disability Discrimination Act (1992) should be amended to:
    • provide the Australian Human Rights Commission a power to issue special measures certification, as administrative decisions, subject to administrative review
    • empower the Commission to consult with relevant stakeholders when deliberating on whether to certify a special measure
    • limit certification for a period up to 5 years
    • maintain certification as voluntary, with duty holders able to rely on existing provisions
    • limit the certification power so as to not extend to the certification of legislative provisions as special measures.
32. The Australian Human Rights Commission should be adequately resourced to promote understanding of special measures under the Disability Discrimination Act 1992 (Cth) as well as to process applications.
33. Part 6 of the Disability Discrimination Act 1992 (Cth) should be amended to:
    • clarify that the Commission may provide advice on the development and implementation of action plans
    • clarify that the Commission may set minimum requirements for action plans (such as through guidelines) and not accept action plans that fail to meet these requirements
    • introduce a set timeframe within which action plans will lapse, and require that outcomes of the evaluation of previous action plans be provided to the Commission when submitting a subsequent action plan.

Australian Human Rights Commission 9

Overview

34. The Education Ministers Meeting should publicly report on implementation of Recommendation 7.9 of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.
35. Treasury should publicly report on the implementation of Action 3 arising from the 2022 Review of the Premises Standards, including any barriers to implementation.
36. The Australian Government should establish a national framework for mandatory compliance reporting against the Disability Standards for Accessible Public Transport 2002 (Cth).

Australian Human Rights Commission 10

Introduction

1 Introduction

The Australian Government should reform the Disability Discrimination Act to ensure it effectively serves the modern Australian community. The last time the Disability Discrimination Act underwent significant amendments was in 2009, as a result of the Productivity Commission’s 2004 Review1 and following Australia’s ratification in 2008 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).2

It is notable that, since the Disability Discrimination Act came into effect, there have been significant improvements in the inclusion of people with disability across Australian society.

However, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) clearly identifies the need for significant improvements to the legislation to address a range of longstanding, ongoing challenges.

Rates of labour force participation have barely shifted over the 30 year period since the enactment of the Disability Discrimination Act.3 The Commission has conducted significant research and engagement to understand the reasons for this – such as through our Willing to Work: National Inquiry into Employment Discrimination4 (Willing to Work), and current IncludeAbility (Equality at Work) project.5 These point to the need for more effective discrimination law protections at the national level for people with disability to achieve employment on an equal basis with others.

The Commission has also consistently received more discrimination complaints under the Disability Discrimination Act than under any other discrimination law. Disability complaints regularly account for approximately 50% of all complaints.

In 2021, the Commission released Free and Equal: A reform agenda for federal discrimination law6 (2021 Free & Equal Position Paper) putting forward a comprehensive plan for reforms across all 4 federal discrimination laws as well as specific reforms to the Disability Discrimination Act.

In 2023, the Disability Royal Commission heavily relied on the 2021 Free & Equal Position Paper as the basis for its recommendations to improve the Disability Discrimination Act.

This consultation process is focused on how to implement the Disability Royal Commission recommendations, while also noting additional areas for reform identified by the Commission. All case examples are taken from the Commission’s online conciliation register.

Australian Human Rights Commission 11

Human Rights Framework

2 Human Rights Framework

This section explains the key human rights protected in the Disability Discrimination Act: the right to equality and non-discrimination and the right to access justice on an equal basis with others. The CRPD standard for the protection of these rights is provided. Recommendations are made to:

• introduce interpretative clauses in the Disability Discrimination Act to ensure interpretation in line with the jurisprudence under the CRPD.
• designate the Australian Human Rights Commission as Independent Monitoring Mechanism under Article 33(2) of the CRPD.

Australia needs a revitalised National Human Rights Framework to better protect the rights of people in Australia and deliver on its international human rights obligations. The Framework should comprise of a federal Human Rights Act, as well as modernised and harmonised protections across all 4 federal discrimination laws.

Changes could be made to reduce complexity and costs of complaints of intersectional discrimination (on multiple grounds), and around the requirement to notify about adverse allegations.

The United Nations Convention on the Rights of Persons with Disabilities (CRPD)

This section explains the CRPD standards and framework for the protection of rights of people with disability, to frame the whole of this submission. Australia ratified the CRPD in 2008 and therefore has obligations to translate obligations into its domestic laws and policies.

The CRPD is the international human rights law that sets out the fundamental human rights as they apply to people with disability, including civil, political, economic, social and cultural rights.7 It was developed to provide specific guidance on measures that need to be addressed in order to achieve equality for persons with disability. One of the aims of the CRPD is to eliminate ableism in society. Ableism, like racism and sexism, results in inequality and discrimination. It views disability as a deficit within the individual who needs to be treated or fixed, to be cared for, and is a burden on society.

The CRPD is a significant legal and policy shift that recognises people with disability as rights holders and persons before the law with the right to make choices for themselves and to be active members of society. This is, in part, reflected in the general obligation under CRPD Article 4.3 for States Parties to

Australian Human Rights Commission 12

Human Rights Framework

closely consult with and actively involve people with disability and their representative organisations in decision-making processes that concern them.

The CRPD recognises that impairment is a natural aspect of human diversity and that disability results from the interaction between people with impairments and barriers that prevent participation and inclusion in society on an equal basis with others.8

Equality and non-discrimination

Equality before the law and non-discrimination are foundational human rights principles. They are both a general principle and standalone human right.9 The right to non-discrimination is contained in Article 7 of the Universal Declaration of Human Rights (UDHR) and set out as a binding obligation in all core international treaties.10

Article 5 of the CRPD protects the right to equality and non-discrimination, recognising that:

• All people are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.11
• States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.12

The CRPD defines discrimination as ‘any distinction, exclusion or restriction on the basis of disability’ with the effect of impairing the enjoyment or exercise of human rights.13 The United Nations Committee on the Rights of Persons with Disabilities (CRPD Committee) identifies 4 main forms of discrimination that are protected in the CRPD: direct discrimination, indirect discrimination, the denial of reasonable accommodation, and harassment.

Two obligations are central to the realisation of equality and non-discrimination for people with disability:

• the general obligation of accessibility, and
• the individual right to the provision of reasonable accommodation.

Accessibility is a general principle of the CRPD, and a State Party obligation which is outlined in Article 9. Article 9 introduces a proactive, systemic duty on State Parties to take appropriate measures to identify and remove barriers to accessibility in environments, systems and services. This applies to the built environment, transport, ICT systems and other facilities and services available and open to the public.14 This requirement applies broadly, without having regard to the particular needs of any individual with disability.15

Australian Human Rights Commission 13

Human Rights Framework

The general obligation of accessibility operates in parallel to the provision of reasonable accommodation, which responds to individual barriers and requirements. Reasonable accommodation is defined in the CRPD as:

necessary and appropriate modification and adjustments not imposing a disproportionate or undue 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.16

The CRPD establishes a requirement for reasonable accommodation to be provided ‘from the moment that a person with a disability requires access to non-accessible situations or environments, or wants to exercise his or her rights’.17 The accommodation is to be negotiated with the person who requires it. It acts as an individualised and reactive duty, with the aim of respecting and responding to difference by removing the detriment but not the difference itself.

Obligations to provide accommodation in specific contexts are also included in the following articles of the CRPD:

• Article 14 reiterates the obligation to provide reasonable accommodation in any process that deprives a person with disability of their liberty.
• Article 24 requires reasonable accommodation be provided to realise the right to non-discrimination and equal opportunity in education.
• Article 27 requires reasonable accommodation be provided to realise the right to non-discrimination and equal opportunity in the workplace.

Equality and non-discrimination do not mean identical treatment in every instance. Rather, different treatment might be needed to ensure equal outcomes.18 This recognises that equality of opportunities and equality of outcomes (referred to as substantive equality) is necessary for the fulfilment of the right to equality and non-discrimination. Substantive equality is only possible with the recognition that structures and systems disadvantage people.

The CRPD seeks to achieve transformative equality (or inclusive equality) as a roadmap for change. Transformative equality goes beyond reforming existing systems, particularly where they are specialised or segregated, by taking steps to transform structures.19

Access to justice

Article 13 of the CRPD requires States Parties to accommodate the active participation of people with disability in the justice system. Access to justice must be ensured for people with disability in all interactions with the justice system, whether as a complainant, witness, juror or defendant.

In particular, Article 13 requires:

Australian Human Rights Commission 14

Human Rights Framework

• the provision of procedural and age-appropriate accommodation to facilitate the effective participation of people with disability in all legal proceedings, including preliminary processes.20
• appropriate training for those involved in the administration of justice, including judicial officers, lawyers, court staff, police and prison staff.21

The language of Article 13 is broad, referring to any procedural and age-appropriate accommodation. This was a deliberate decision made in the drafting process to ensure that the provision would encompass the requirements of all people with disability, not only those with common or more straightforward support needs.22

Importantly, Article 13 places a positive duty on States Parties to provide the requisite accommodation to ensure access to justice for people with disability. Unlike the reasonable accommodation obligations under Article 5, this duty is not limited by the concept of disproportionate or undue burden and, as such, it is owed to all people with disability, even those who require complex and intensive supports.23

Disability Discrimination Act interpretation clauses

The Issues Paper seeks views on recommendation 4.33 of the Disability Royal Commission to introduce an explicit reference to the CRPD in the objects of the Disability Discrimination Act.

The Commission supports this inclusion to ensure greater clarity on the purpose of the Act to give effect to the CRPD, and to ensure that the provisions of the Act are interpreted having regard to the CRPD.

The Acts Interpretation Act 1901 (Cth) provides for rules for interpreting law, including that any treaties referred to in an Act can form part of the ‘extrinsic material’ that may be referred to and relied upon when interpreting that Act.24 It also provides that:

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.25

The Disability Discrimination Act was enacted in 1992 before the drafting and introduction of the CRPD. Amendments made in 2009 sought to reflect the Australian Government’s commitments post-ratification of the CRPD.

While the objects of the Disability Discrimination Act align with the CRPD’s general principle of non-discrimination, the Act does not explicitly include the object of giving effect to the CRPD. It only references the CRPD in the providing that the provisions of the Act addressing discrimination apply to the extent that they give effect to the CRPD and other international human rights treaties.26

Australian Human Rights Commission 15

Human Rights Framework

One of the benefits of including the CRPD in the objects clause would be to ensure that the Disability Discrimination Act is interpreted in line with the jurisprudence under the CRPD.

For example, as discussed under in section 3, the Commission is concerned by the impact of the Sklavos decision on the meaning of reasonable adjustment under the Disability Discrimination Act. It is likely that a stronger connection to the CRPD in the law would have assisted in the domestic interpretation of reasonable accommodation.

Including a reference to the CRPD in the objects clause would also be consistent with the legislated objects in other federal discrimination laws.

• The Age Discrimination Act includes the requirement to bear ‘in mind the international commitment to eliminate age discrimination reflected in the political declaration adopted in Madrid, Spain on 12 April 2002 by the Second World Assembly on Ageing’.27
• The Sex Discrimination Act includes the requirement to give effect to United Nations Convention on the Elimination of all forms of Discrimination Against Women, which is included as a schedule to the Act. 28
• The Racial Discrimination Act includes the United Nations International Convention on the Elimination of All Forms of Racial Discrimination as a schedule to the Act.29

The Commission sees value in the CRPD being included as a schedule to the Disability Discrimination Act, in line with the approach taken with CEDAW in the Sex Discrimination Act and ICERD in the Racial Discrimination Act.

Recommendation 1: Section 3 of the Disability Discrimination Act 1992 (Cth) should be amended to insert a new object to give effect to Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities.

Recommendation 2: The United Nations Convention on the Rights of Persons with Disabilities should be included as a Schedule to the Disability Discrimination Act 1992 (Cth).

The Issues Paper also seeks views on the Disability Royal Commission recommendation for the introduction of an additional interpretative clause to expressly provide that the Disability Discrimination Act is beneficial legislation that must be interpreted in a way that benefits people with disability.30 The Commission supports this amendment and the wording proposed by the Disability Royal Commission.

Recommendation 3: Section 4 of the Disability Discrimination Act 1992 (Cth) should be amended to insert a new provision for the Act to be interpreted in a way that is beneficial to people with disability, to the extent that it is

Australian Human Rights Commission 16

Human Rights Framework

possible to do so consistently with the United Nations Convention on the Rights of Persons with Disability, the International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights.

CRPD Independent Monitoring Mechanism

Article 33(2) of the CRPD requires States Parties to designate one or more independent monitoring mechanisms (IMM), to promote, protect and monitor implementation of the CRPD. The IMM should be functionally and substantively independent from government and the focal point designated for the purposes of CRPD Article 33(1) and be established having regard to the Paris Principles pertaining to the role of NHRIs.31

Australia does not have a formally designated IMM as required by Article 33(2). Instead, the Commission is viewed by the Australian Government as having a de-facto role in monitoring the implementation of the CRPD in Australia,32 by way of our broad statutory functions under the Australian Human Rights Commission Act 1986 (Cth)33 (Australian Human Rights Commission Act) and our mandate as an A-status NHRI.

The CRPD Committee raised concerns about the lack of a participatory and responsive structure for implementing and monitoring the CRPD in Australia. In 2019, it recommended that the Australian Government amend existing laws (or enact new laws) to expand and strengthen the scope and power of the Australian Human Rights Commission to perform the task of IMM in line with Article 33(2) and the CRPD Committee’s General Comment No. 7.34

The Australian Human Rights Commission Act could be amended to formally designate the Commission as IMM as part of the package of amendments that should be introduced as a result of this review of the Disability Discrimination Act.

The statutory amendment could be worded similarly to that used by the Canadian Government to designate the Canadian Human Rights Commission as IMM in 2019:

The Commission is, for the purposes of paragraph 2 of article 33 of the Convention on the Rights of Persons with Disabilities, adopted by the General Assembly of the United Nations on December 13, 2006, designated as a body responsible for monitoring the Government of Canada’s implementation of that Convention.35

Recommendation 4: The Australian Human Rights Commission Act 1986 (Cth) should be amended to formally designate the Australian Human Rights Commission as the independent monitoring mechanisms for the purposes

Australian Human Rights Commission 17

Human Rights Framework

of Article 33(2) of the United Nations Convention on the Rights of Persons with Disabilities.

Australia’s Human Rights Framework

Obligations contained in international human rights treaties are binding as a matter of international law but must be enacted in domestic law to be enforceable in a domestic context.

The Disability Discrimination Act has an integral role to play in the implementation of Australia’s human rights obligations, especially those set out in the CRPD. However, discrimination laws alone will not be sufficient to fully implement all of the obligations in the CRPD or to achieve its goal of transformative equality.

Australian can and should do better in protecting and promoting human rights.

The Commission’s major, five-year-long project, Free and Equal: An Australian Conversation on Human Rights, proposes a Human Rights Framework that would incorporate new and renewed initiatives for human rights protections that meet the challenges of 21st century life.36 The proposed Framework comprises 7 pillars with a national Human Rights Act at its heart, alongside federal discrimination law reform.

The Australian Government is considering a national Human Rights Act in the context of its response to both the final report of the Parliamentary Joint Committee on Human Rights (PJCHR) Inquiry into Australia’s Human Rights Framework,37 and the recommendations made by the Disability Royal Commission for a Disability Rights Act.38 The Commission encourages the Australian Government to act swiftly on these reforms.

Recommendation 5: The Australian Government should introduce a national Human Rights Act in order to fully meet Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities.

Federal discrimination law

Another of the 7 pillars in the Commission’s revitalised human rights framework is reform to harmonise and modernise federal discrimination laws to a proactive and preventative model. The Commission sees harmonisation as a necessary step to the realisation of the right to equality and non-discrimination for all people in Australia.

Four federal discrimination laws provide protections against discrimination on the grounds of particular attributes:

• race, colour, descent, national or ethnic origin and immigration status in the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act)

Australian Human Rights Commission 18

Human Rights Framework

• sex, pregnancy, marital or relationship status, breastfeeding, gender identity, intersex status, sexual orientation or family responsibilities in the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act)
• disability in the Disability Discrimination Act
• age in the Age Discrimination Act 2004 (Cth) (Age Discrimination Act).

These laws were developed and introduced at different times and in varying political climates. Reform has been piecemeal, usually in response to specific issues. Significant developments in some laws – such as the introduction of the positive duty into the Sex Discrimination Act39 – have not been implemented across all federal discrimination laws, leading to disparities in the level of protections available for different attributes. The absence of a combined review of all federal discrimination laws has meant there has been no questioning of whether they are acting in tandem to best serve the community.40

A call for harmonised federal discrimination laws has been made for many years. In 2012, an Exposure Draft of a Human Rights and Anti-Discrimination Bill 2012 (HRAD Bill), a single consolidated federal anti-discrimination Act, was released for public comment. The objective was ‘to create a more effective system of protections from unlawful discrimination, greater certainty for businesses and the most efficient enforcement mechanisms’.41 Ultimately, the attempt to consolidate federal discrimination law was unsuccessful. More than a decade later, the need for harmonisation of the federal discrimination laws remains.

The introduction of harmonised federal discrimination laws would ensure consistent protections for all people with protected attributes as required under international human rights law. It would go some way to address intersectional and compounding experiences of discrimination. It would also reduce the regulatory complexity for both duty holders and regulators by avoiding the operation of different rights, responsibilities and duties with respect to different forms of unlawful discrimination.

In the course of our consultations for Free & Equal, the Commission heard from business representatives about how important it is for them to have confidence and clarity of expectations in discrimination law and that any reform to discrimination laws should result in a ‘net improvement to the regulatory framework, including in the capacity of employers to comply’.42

The principles of regulatory best practice require that regulators consider, and aim to improve, the combined regulatory burden of governments on business and the community.43 In a 2025 survey of its members, the Australian Institute of Company Directors (AICD) found nearly 60 per cent of survey responders rated compliance and regulation as the top issue affecting organisational risk

Australian Human Rights Commission 19

Human Rights Framework

appetite.44 The AICD attributed these results to the rise in part to duplication and overlap of regulation.45

The Commission notes that the duty bearers who are required to comply with each discrimination law are generally the same – for example, employers, business owners providing goods and services and educational providers. Requiring such duty bearers to understand and meet different standards under each discrimination law is inefficient, adds unnecessary regulatory burden, and ultimately significantly impacts on the ability of everyday people to understand the law.

The adoption of harmonised federal discrimination law would set a clear expectation that all duty holders must always act in a non-discriminatory manner and pre-emptively consider and address risks of unlawful discrimination. There are a few ways to achieve harmonisation of federal discrimination laws:

• Replace the existing 4 federal discrimination laws with one combined law.
• Ensure consistency of legal standards and requirements across the 4 existing discrimination laws.

The Commission notes that the Government has not committed to ensuring that all federal discrimination laws operate in a consistent, standardised manner and has only committed to reforming the Disability Discrimination Act.

Any changes to complaint handling processes related to disability discrimination would be achieved by reforming the Australian Human Rights Commission Act. As this also governs how the complaint processes work under all 4 discrimination laws, any reforms to that Act would contribute to a broader harmonisation of the law.

However, there are many significant issues in the discrimination laws themselves. This includes differences in definitions of discrimination, evidentiary requirements and any positive duties. The Commission strongly encourages the Australian Government to apply any amendments to the Disability Discrimination Act across the remaining 3 discrimination laws where there are common issues. The Government should ensure consistency in definitions, legal tests and defences.

Recommendation 6: The Australian Government should harmonise federal discrimination laws to ensure consistency in their operation.

Intersectional discrimination

The Issues Paper seeks views on amendments to the Disability Discrimination Act to expressly allow discrimination claims to be brought for multiple or

Australian Human Rights Commission 20

Human Rights Framework

combined protected attributes, and whether other changes should be made to this Act to protect people with disability who have intersecting identities.

Intersectional discrimination refers to the fact that ‘people often experience multiple overlapping forms of discrimination and harassment, for example on the basis of gender, race, disability or sexuality.’46 Many people with disability provided evidence on their experiences of intersectional discrimination to the Disability Royal Commission.

International human rights law recognises that discrimination may occur on the grounds of various attributes. The International Covenant on Civil and Political Rights (ICCPR) protects rights without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.47 This list is non-exhaustive through the inclusion of ‘other status’, which refers to grounds for discrimination that are not explicitly listed, and is far broader than the attributes currently protected by federal discrimination law in Australia.

In the 2019 review of Australia’s implementation of the CRPD, the CRPD Committee expressed concern that Australian laws do not facilitate an individual bringing a complaint of discrimination relating to multiple protected attributes.48 The CRPD Committee recommended anti-discrimination laws be strengthened, and particularly the Disability Discrimination Act to ‘[a]ddress and prohibit systemic, intersectional and multiple forms of discrimination, recognizing discrimination on a single or on multiple and/or intersectional characteristics’.49

Through our complaints handling functions, the Commission routinely receives complaints based on multiple grounds of discrimination. The flexibility of the complaints process allows these to be dealt with as one complaint, rather than the complaint being separated into their component parts. As such, applicants are not required to choose only one attribute when making a complaint to the Commission and can proceed with a complaint on multiple grounds, provided the complaint relates to attributes protected in any of the 4 federal discrimination Acts.

However, as noted in the Issues Paper, if a complaint proceeds to court, there is less flexibility and more complexity in making out claims under the different federal discrimination laws, which have different tests for discrimination. The court process requires an applicant to satisfy each of the different tests and elements of proof for different attributes under the various discrimination laws, creating difficulties for individuals who have experienced intersectional discrimination.50

This adds complexity to the court proceedings, including cost. Where a person’s experience of disability discrimination also intersects with discrimination covered under the other discrimination laws – for example, on the basis of a

Australian Human Rights Commission 21

Human Rights Framework

person’s gender or ethnic background – the requirements for reasonable adjustment are not as clearly addressed.

The Commission notes that multiple responses are required to effectively address intersectionality:

• Harmonisation would go some way, especially by aligning the tests for discrimination across all 4 federal discrimination laws.
• Removing the comparator test in the Disability Discrimination Act, (addressed and supported at section 3 of in this submission), would also contribute to this, although it would not, of itself, be sufficient.
• Formally recognising intersectional discrimination in a new provision expressly acknowledging that complaints involving a number of grounds of discrimination could be made in one complaint.

Consistent with our position in Willing to Work and our Free & Equal 2021 Position Paper, the Commission makes the following recommendation.51

Recommendation 7: A new provision should be added across all federal discrimination laws that identifies that discrimination may occur on the basis of a particular protected attribute ‘or a particular combination of 2 or more protected attributes’ covered under the 4 federal discrimination laws.

Complaints handling and the requirement to notify of adverse allegations

The Australian Human Rights Commission Act requires the Commission to notify people who are not respondents to a discrimination complaint of any adverse allegations made about them in a complaint. This requirement is in addition, and separate, to the requirement to notify each respondent to a complaint.

The person required to be notified of an adverse allegation is not a respondent to the complaint and they are not subject to any legal action if the complaint proceeds to court. The adverse allegation notification requirement is without precedent, in that no equivalent requirement exists in any other state or territory discrimination or human rights legislation.

The requirement was introduced in 2017 with the purpose of enhancing the Commission’s operation and efficiency, and to ensure that people against whom complaints are made are treated fairly. However, the notification process increases the time it takes for the Commission to assess complaints and comply with notification obligations. It also leads to complainants adding those individuals as respondents upon becoming aware of the Commission’s obligation to notify them. This increases the number of people being named as respondents, adding to complexity of discrimination matters. In addition, it

Australian Human Rights Commission 22

Definitions of discrimination and defences

increases the administrative burden on organisational respondents to complaints. People notified of adverse allegations typically do not seek to have any further engagement with the Commission after the notification has taken place. Most commonly, they express confusion and distress about why they have been notified of a complaint in circumstances where they are not a respondent and cannot be named as such in any subsequent court action.

In 2025, the Commission reviewed complaints received under the Disability Discrimination Act 1992 (Cth) and Sex Discrimination Act 1984 (Cth) over a 2-month period. Approximately 20% included adverse allegation notification requirements for one or more people.

The Commission has consistently raised concerns about this requirement, including in our 2021 Free & Equal Position Paper. The Commission’s recommendation to remove this requirement is repeated here.

Recommendation 8: Section 46PF(7)(c) and 46PF(9) of the Australian Human Rights Commission Act 1986 (Cth), requiring the Commission to notify people of adverse allegations, should be removed.

3 Definitions of discrimination and defences

This section outlines how certain provisions in the Disability Discrimination Act can be simplified to better protect people with disability, in a way that maintains a balanced and proportionate regulatory burden on duty holders. Recommendations are made to:

• remove the comparator test in direct discrimination, as well as shift the burden of proof.
• simplify the test for indirect discrimination, including by removing dual defences.
• create a standalone duty to provide adjustments.
• increase protections against harassment, limited by similar exceptions as in sections 18C and 18 D of the Racial Discrimination Act.
• require greater consultation with people with disability and the consideration of alternatives to avoid unjustifiable hardship, as well as greater transparency by duty holders.
• clarify provisions about inherent requirements all the while maintaining room for innovation, flexibility, and responsiveness.

Direct discrimination

The Issues Paper seeks views on 2 recommendations made by the Disability Royal Commission relating to direct discrimination in the Disability

Australian Human Rights Commission 23

Definitions of discrimination and defences

Discrimination Act. The first recommendation proposes a change to the definition and test for direct discrimination and the second relates to the burden of proof. Each of these are addressed in turn.

The ‘comparator test’

The current test for direct discrimination under the Disability Discrimination Act requires that an aggrieved person prove the following:

• a person with disability has been, or is proposed to be, treated less favourably compared to a person without a disability in similar circumstances, and
• the less favourable treatment occurred because of a disability.52

The first limb of the test for direct discrimination – commonly referred to as the comparator test – requires a comparison to be made between the treatment or the proposed treatment of the person with disability and the treatment of a person without the disability (i.e. the comparator), in circumstances that are materially the same. A comparator may be actual or hypothetical. The comparator test is also a requirement in establishing direct discrimination under the Age Discrimination Act and Sex Discrimination Act.53

The complexity with the comparator test lies in the uncertainty in how it will be applied. The test relies on a court’s conception, which can be unpredictable and uncertain, of the material circumstances of a case to determine whether the discrimination is attributed to the circumstances or a person’s disability.

It is rare for an actual or direct comparator to be available, meaning that the comparator is often a hypothetical person without disability in a hypothetical scenario.54 The exercise leads to ‘technically complex, abstract and time-consuming legal arguments’ focusing on the identification or creation of a comparator, rather than the merits of the complaint.55 This can result in direct discrimination not being made out, even if the person with disability has been treated unfavourably.

Australian Human Rights Commission 24

Definitions of discrimination and defences

Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 (Purvis)

In 2003, the High Court in Purvis considered whether expelling a student with disability on the grounds of misbehaviour was discriminatory.

The case was about a student with disability, who was expelled from the school due to instances of behaving violently towards himself and others at school. This behaviour arose due to manifestations of the student’s disability. The student’s family argued that the behaviour was largely because of the discriminatory treatment the student was experiencing at school.

In considering the appropriate comparator, the High Court found that no actual comparator was available and, instead, created a hypothetical comparator. The Court decided that the hypothetical comparator should be a student without a disability who was also behaving violently towards themselves and others.

The High Court found that the behaviours in question formed part of the comparator, instead of acknowledging that these behaviours were manifestations or characteristics of the student’s disability. The Court held that the school had not acted in a discriminatory manner because, as argued by the school, the school would have expelled another student without disability in similar circumstances if that student displayed the same behaviours.

This finding disregarded the fact that the behaviour in question arose from, and was linked to, the student’s disability.

The practical implication of the precedent set in Purvis is that there is almost no consideration in direct discrimination cases of how and when disability may inform or alter behaviour.56 If the court creates a comparator without disability, and therefore without those behaviours, it creates a comparator who behaved the same way as the person with disability. The interpretation misunderstands disability by separating the disability from any manifestations or characteristics that are inherently related to it.

This is what happened in Purvis, and led to discrimination not being identified. In our Free & Equal 2021 Position Paper, the Commission stated that the precedent in Purvis

effectively obscures or ignores the basis or cause of the behaviour for the person with disability, and treats manifestations of their disability as though they were something discretionary that could be removed or taken off. The result is a very

Australian Human Rights Commission 25

Definitions of discrimination and defences

narrow test for direct discrimination that prohibits discrimination on the basis of disability itself, but not on the basis of outward manifestations of it that may be perceived as socially undesirable.57

The Purvis case has negative consequences for many people who have disability that affects the way they behave. The Purvis case has also been criticised for setting a precedent that undermines substantive equality by leading to arguments being made that anyone else would receive the same treatment.58 This fails to recognise that the same treatment can entrench disadvantage and produce unequal outcomes. Together, the comparator test and the Purvis case make it far more difficult for people with disability to be successful in proving a direct discrimination claim.

Slattery v Manningham City Council (Human Rights) [2013] VCAT 1869 (30 October 2013) (Slattery)

In Slattery, the Victorian Civil and Administrative Tribunal (VCAT) found that the Manningham City Council directly discriminated against Mr Slattery on the grounds of disability, contrary to the Equal Opportunity Act 2010 (Vic). The tribunal also made findings of breaches of the Victorian Charter, which are not addressed here.

Mr Slattery had several impairments, including bipolar disorder, attention deficit hyperactive disorder, post-traumatic stress disorder and an acquired brain injury. He had an ardent desire to participate in society, strong views about local government accountability and a compulsion to monitor health and safety in the local area, including overhanging branches and tripping hazards. He made thousands of complaints to Manningham City Council. He was ultimately banned from attending any building that was owned, occupied or managed by the Council. The Council’s actions had wide implications and extended to preventing him from taking his grandchildren to the local pool, visiting the local library or even using public toilets.

VCAT found that Mr Slattery’s behaviours (i.e. overzealous complaints and other related behaviours) were manifestations of his disability and, therefore, that the Council discriminated against him.

The Victorian Equal Opportunity Act had earlier been amended to remove the ‘comparator test’. Therefore, Mr Slattery did not have to prove that he was treated worse than others who had acted in the same way were, or would have been, treated. Instead, the test was whether he had been treated unfavourably. Unlike in the case of Purvis, to assert his rights, he did not need to be compared with that of anyone else.

Australian Human Rights Commission 26

Definitions of discrimination and defences

The Detriment Test

In our 2021 Free & Equal Position Paper, we recommended that the comparator test for direct discrimination be replaced by a determination of unfavourable treatment on the ground of disability. 59 This simpler test for direct discrimination (commonly referred to as the detriment test) increases the focus on the discrimination,60 and would promote substantive equality.61

The elements of the detriment test, in the context of disability discrimination, are:

• the unfavourable treatment caused the person with disability to experience detriment or disadvantage, and
• the treatment was because of the person’s disability.

Under the detriment test, it would be sufficient for a person with disability to show that they have been treated unfavourably, without the additional element of proving that a person without the same disability would have been treated more favourably in the same circumstances. The detriment test does not require a comparator, but a complainant may nonetheless choose to refer to a comparator to assist or bolster their claim.62

Both the Discrimination Act 1991 (ACT) and Equal Opportunity Act 2010 (Vic) apply the detriment test, and it has been proposed in Western Australia and Queensland. The Fair Work Act 2009 (Cth) (Fair Work Act) also uses a similar test by prohibiting ‘adverse action’ against a person due to their disability.63

Jurisprudence in these jurisdictions demonstrates how the detriment test applies in practice, providing evidence of the positive outcomes that could be achieved through making the test for direct discrimination simpler and easier for people who have experienced discrimination.

Given that the Age Discrimination Act and Sex Discrimination Act also include the comparator test in the determination of direct discrimination, any changes to the test for direct discrimination that are made to the Disability Discrimination Act should also be reflected in those Acts.

Recommendation 9: Section 5(1) of the Disability Discrimination Act 1992 (Cth) should be amended to replace the ‘comparator test’ with a ‘detriment test’, in direct discrimination.

Burden of Proof

Under the current test for direct discrimination in the Disability Discrimination Act, a person with disability must not only establish that they were, or were proposed to be, treated less favourably, but also that the less favourable treatment was because of the disability.64 The disability does not need not be the only reason for the less favourable treatment; it must be one of the reasons.65

Australian Human Rights Commission 27

Definitions of discrimination and defences

The person with disability bears the burden of proving that, on the balance of probabilities, the disability was a reason for the discriminatory treatment.66 Often a person with disability will not have enough information to be able to prove why another person treated them less favourably. This makes it more difficult for the person who has been discriminated against to meet the burden of proof and to be successful in their discrimination claim.

In practice, a court would usually expect the respondent to explain why they made a decision or acted or failed to act in a way that caused the less favourable treatment. However, this is not a requirement under the Disability Discrimination Act.67 Generally, evidence of the reasons for the alleged discriminatory conduct would be held by the respondent, and the person with disability would not have access to this information.68

In addition, there is often a power imbalance between the person with disability and a respondent, especially when the respondent is an organisation with access to resources and legal expertise to defend a discrimination matter. This imbalance is amplified because the current burden of proof for direct discrimination claims is placed on the person with disability. This is not always the case; in many instances, respondents are individuals who may not be as well-resourced as an organisation.

Victims of discrimination should not be subject to an undue burden in attempting to establish their complaint. While the person with disability may know or have evidence of why the alleged discriminatory treatment occurred, the respondent is best placed to provide evidence about why the disability was not a reason for the less favourable treatment.69

The Disability Royal Commission recommended that the burden of proof should be consistent with that in the Fair Work Act,70 where the applicant must prove a protected attribute and adverse action, after which the burden shifts to the respondent to prove that the action was not taken on the basis of the person’s disability.71 This model operates on the presumption that an employer’s adverse action was taken on the basis of a prohibited reason; and that it is up to the employer to overturn that presumption. There is a strong argument to support consistency across comparable laws, and any alignment should maintain the highest threshold.

We considered the Fair Work Act model in our 2021 Free & Equal Position Paper and opted, instead, in favour of the UK model (also incorporated in the earlier HRAD Bill) as one that strikes a fairer balance between a person with disability and respondent in direct discrimination matters.72 This model requires the complainant to establish a prima facie case that unlawful discrimination occurred. In other words, the complainant bears the onus of evidencing the connection between their disability and the unfavourable treatment. It is then

Australian Human Rights Commission 28

Definitions of discrimination and defences

up to the respondent to show a non-discriminatory reason for the conduct, that the conduct was justifiable or that another exception applied.73 The Commission recommends this approach, which also aligns with well-established practice in international and comparative human rights jurisprudence.74

Recommendation 10: Section 5(1) of the Disability Discrimination Act 1992 (Cth) should be amended to shift the burden of proof for establishing that less favourable treatment was because of a person’s disability to respondents, once a prima facie case is established.

Indirect discrimination

The Issues Paper seeks views on Disability Royal Commission recommendations to simplify the test for indirect discrimination.

The current test for indirect discrimination in the Disability Discrimination Act requires 3 elements:

• a person is required to comply with a requirement or condition,
• because of the disability, the person does not or would not comply, or is not able to or would not be able to comply, with the requirement or condition, and
• the requirement or condition disadvantages people with disability.

However, unlawful discrimination will not be established if the requirement or condition is reasonable, having regard to the circumstances of the case.75

Inability to comply

The requirement that a person not comply or be unable to comply is also found in other discrimination laws, including the Racial Discrimination Act and state and territory discrimination laws in New South Wales, South Australia, Queensland and Western Australia.76

In its Discussion Paper on the consolidation of discrimination laws in 2011, the Attorney-General’s Department pointed out that ‘there is no clear policy reason for the inclusion of the requirement [to comply] in the Disability Discrimination Act and Racial Discrimination Act but not the Age Discrimination Act and Sex Discrimination Act.77

The Commission repeats our recommendation from the Free & Equal 2021 Position Paper for this requirement to be removed so as to require only that a condition, requirement or practice has the effect of disadvantaging a person with disability. This would align with the requirement in the Age Discrimination Act and Sex Discrimination Act, and in Tasmania and Victoria. 78

This proposed amendment should also be made to the Racial Discrimination Act.79

Australian Human Rights Commission 29

Definitions of discrimination and defences

Recommendation 11: Section 6(1)(b) of the Disability Discrimination Act 1992 (Cth) should be removed.

Dual defences

Even if a person with disability establishes the 3 elements of the test for indirect discrimination, unlawful discrimination against a person with disability would not be established if the respondent can show that the requirement or condition imposed was reasonable in the circumstances (reasonableness defence).80

In addition to this, the respondent may rely on a second defence, that of unjustifiable hardship. If a respondent establishes that avoiding the discrimination would impose an unjustifiable hardship on them, they will not be considered to have engaged in unlawful discrimination.81

Access to dual defences creates barriers for people with disability to successfully prove claims of indirect discrimination and magnifies power imbalances between people with disability and respondents.

As noted by the Disability Royal Commission, the court has considered a number of factors in determining reasonableness, such as:

• whether the requirement was necessary or merely convenient in the circumstances82
• whether alternatives existed to the particular requirements or conditions83
• the cost of providing an alternative,84 or
• whether the requirements or conditions were imposed while complying with other obligations.85

The Commission considers the reasonableness test to be vague and that it leads to disparate judicial interpretations because it is difficult to identify the limits of indirect discrimination claims using this approach.86

The Issues Paper seeks views on 3 options for change to the reasonableness test.

Option 1 is the Disability Royal Commission’s recommendation that the reasonableness test be removed altogether, so as to only leave in place the single defence of unjustifiable hardship. In the Commission’s view, there may be circumstances where a requirement to comply with a condition has legitimate objectives but does not cause unjustifiable hardship. Removing this consideration entirely would eliminate an opportunity to balance the rights people with disability with the legitimate aims of a condition or requirement of duty holders.

Australian Human Rights Commission 30

Definitions of discrimination and defences

Option 2 proposes the inclusion of additional guidance on factors to be considered in determining whether something was reasonable in the Act, similar to section 7B of the Sex Discrimination Act. This approach could improve consistency and transparency and provide clearer guidance on what constitutes a reasonable requirement or condition.

Option 3 proposes that the reasonableness test be replaced with a more rigorous and specific ‘legitimate and proportionate’ test. This test has been successfully implemented in the United Kingdom in its Equality Act 2010, whereby the respondent must show that the practice that is alleged to be discriminatory is necessary to achieve a legitimate aim and that there are no other less discriminatory alternatives.87 The importance of the goal of the practice is assessed, and a ‘means-ends’ test is applied to determine the closeness of the ‘fit’ between the means and the ends.88

The Commission prefers Option 3. Replacing the reasonableness test with a legitimate and proportionate test would provide a clear and structured framework that aligns with international human rights law.

Professor Sandra Fredman observes that proportionality ‘requires close scrutiny of the stated aims [for conduct], and the means to achieve those aims. It thus structures judicial decisions in important ways’.89

Both the Equal Opportunity Act 2010 (Vic) and the Sex Discrimination Act apply a test that comes close to a proportionality test in practice, through the extended list of factors to consider in assessing ‘reasonableness’ of a condition.90

Recommendation 12: Section 6(3) of the Disability Discrimination Act 1992 (Cth) should be amended to replace the ‘reasonableness’ test for the condition or requirement imposed with a ‘legitimate and proportionate’ test.

Duty to provide adjustments

As explained in section 2, reasonable accommodation is intrinsic to the realisation of the right to equality and non-discrimination.

The Disability Discrimination Act requires that duty holders make reasonable adjustments, unless such adjustments would impose unjustifiable hardship on the duty holder.91

The 2009 amendments to the Disability Discrimination Act introduced a provision stating that the failure to provide reasonable adjustments is a form of direct or indirect discrimination.92 This does not wholly align with CRPD guidance, which states that the failure to provide reasonable adjustments is a form of discrimination of itself, separate to direct and indirect discrimination.93

Australian Human Rights Commission 31

Definitions of discrimination and defences

Standalone duty to provide adjustments

The Disability Royal Commission recommended the introduction of a standalone duty to provide adjustments.94 Currently, the failure to provide adjustments is included as a basis for direct or indirect discrimination.

A standalone duty to provide adjustments would clarify that this is a separate and distinct obligation on duty holders, intended to operate in a proactive way and independently of a discrimination claim. This amendment would better align with the framing of obligations related to reasonable adjustments in the CRPD.

A duty to provide adjustments for people with disability and other protected groups already exists in some state and territory legislation.95 Evidence from Victoria shows that the duty is not passive and requires duty holders to be proactive in implementing adjustments, instead of waiting until discrimination has occurred before considering making adjustments.96

Consistent with Reform 31 in our 2021 Free & Equal Position Paper, the Commission supports this amendment.

Recommendation 13: A standalone duty to provide adjustments for people with disability should be introduced in the Disability Discrimination Act 1992 (Cth).

The Issues Paper seeks views on whether this duty should extend to contexts other than the areas of public life covered in the Disability Discrimination Act. The Commission considers such an expansion could not reasonably or easily be achieved or regulated without further broadening the areas of public life under the Act.

Australian Human Rights Commission 32

Definitions of discrimination and defences

Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247 (Sklavos)

In Sklavos, the Full Court of the Federal Court considered whether reasonable adjustments were refused ‘because of’ a person’s disability.

Sklavos was a doctor who was training to specialise in dermatology. He developed a disability preventing him from completing the final exams to be admitted as a Fellow.

Sklavos made several requests for adjustments due to his disability, including asking for the College to admit him as a Fellow without him having to sit the final exams. The College denied these requests but told Sklavos it would consider any reasonable request he made for special conditions in the exams.

A key issue for the Court was whether the adjustments were refused ’because of’ Sklavos’ disability. The Court considered that Sklavos was required to establish a causal connection between the refusal to provide reasonable adjustments and the disability. The Court held that Sklavos had not been discriminated against because he could not prove that the refusal to provide adjustments was ‘because of’ his disability.

The judgment in Sklavos significantly narrowed the application of the duty to provide reasonable adjustments by requiring the person with disability to prove that the refusal to provide reasonable adjustments was because of the person’s disability.97 This effectively turns the positive obligation of reasonable adjustments into a negative one,98 by requiring the person with disability to have knowledge of the reasons and state of mind of the duty holder to make a successful claim.99 This is both confusing and unrealistic.

Since the Sklavos decision, a number of cases have considered the question of causation and consistently affirmed the decision in Sklavos that less favourable treatment must have occurred because of a person’s disability.100

Reasonableness

The CRPD uses the term ‘reasonable accommodation’, rather than ‘reasonable adjustment’. The CRPD Committee states that the concept of reasonableness should not act as a qualifier to the duty. The reasonableness refers to the appropriateness and effectiveness of the adjustment to meet the requirements of the person with disability.101

The Disability Discrimination Act defines ‘reasonable adjustment’ as an adjustment to be made by a person, unless making the adjustment would

Australian Human Rights Commission 33

Definitions of discrimination and defences

impose an unjustifiable hardship on the person.102 The Act does not prescribe the factors to be considered in the assessment of what is ‘reasonable’.

The Disability Royal Commission heard that ‘reasonable adjustments’ is often understood by employers to be an assessment of what may be reasonable to provide in the circumstances,103 and recommended that the word ‘reasonable’ be removed from the term to address this misconception. This would eliminate multiple standards by removing the reasonableness element but would maintain the defence of unjustifiable hardship. The Commission supports this amendment to ensure that clarity is provided to duty holders on their obligation to provide adjustments.

Recommendation 14: Section 4 of the Disability Discrimination Act 1992 (Cth) should be amended to remove the word ‘reasonable’ from the definition of ‘reasonable adjustments’.

Offensive behaviour and vilification protections

The CRPD explicitly includes freedom from exploitation, violence and abuse within the cross-cutting right to equality and non-discrimination. This is set out in Article 16, which includes an obligation for State Parties to ‘take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of all forms of exploitation, violence and abuse, including their gender-based aspects’.104

The drafting intent of the CRPD was to recognise and address the high prevalence of all forms of exploitation, violence and abuse experienced by people with disability.105 The obligations set out in Article 16 are complemented by awareness-raising obligations set out in Article 8, which includes an obligation for State Parties ‘to combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life’.106

In General Comment No. 6, the CRPD Committee discusses the duty to prohibit all discrimination in Article 5(2) and describes 4 main forms of discrimination that can occur individually or simultaneously, one of which is harassment. The Committee describes ‘harassment’ as:

a form of discrimination when unwanted conduct related to disability or other prohibited grounds takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. It can happen through actions or words that have the effect of perpetuating the difference and oppression of persons with disabilities. … “Bullying” and its online form, cyberbullying and cyberhate, also constitute particularly violent and harmful forms of hate crimes. Other examples include

Australian Human Rights Commission 34

Definitions of discrimination and defences

(disability-based) violence in all its appearances, such as rape, abuse and exploitation, hate-crime and beatings.107

The Disability Discrimination Act currently prohibits harassment of a person with disability,108 or a person who has an associate with disability, ‘in relation to the disability’ in 3 areas of public life:

• Employment: applies to employees, potential employees, contract workers, and potential contract workers.109
• Education: applies to the harassment of a student or potential student by a member of staff of an educational institution.110
• Provision of goods and services: prohibits providers of goods and services or facilities from harassing a person seeking to acquire goods or services or to make use of the facilities.111

These protections are limited in that they apply only to particular relationships in specific areas of public life, and do not expressly capture harassment perpetrated by a group of people or directed toward a group of people.112

Furthermore, the provisions have been applied by the courts in a limited manner. For example, in the absence of a definition for ‘harass’ for the purposes of these provisions, the courts have applied the ‘ordinary meaning’ of that term, which requires persistent or repeated actions.113 This means that these protections do not apply to single incidents of disparaging conduct.

The harassment must be ‘in relation to the disability’, which requires an applicant to prove that the disparaging conduct occurred, that it was in relation to them, and that it was in relation to their disability.114

Harassment and offensive behaviour protections

There are a number of ways to provide for effective protections from different forms of harassment and offensive behaviour.

In Australia, harassment is often described as unwelcome conduct in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that another person would be offended, humiliated or intimidated.115 This language has been used in the Sex Discrimination Act in prohibiting sexual harassment and similar language is used in the Disability Standards for Education to protect people with disability in relation to educational institutions.116

The Disability Royal Commission recommended the introduction of an offensive behaviour provision modelled on section 18C of the Racial Discrimination Act:

(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 or a group of people; and

Australian Human Rights Commission 35

Definitions of discrimination and defences

(b) the act is done because of the disability of the other person or because some or all of the people in the group have or are perceived by the first person to have a disability.

(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.117

This model is broader than the harassment provisions currently in the Disability Discrimination Act and is consistent with other federal laws.118

While the words ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate’ are given their ordinary meanings, the courts have interpreted these terms to extend only to serious incidents or effects and not mere slights.119 This is determined objectively,120 taking into account the values, standards and circumstances of the group against whom the acts are directed.121

The meaning of ‘public place’

The new provisions proposed by the Disability Royal Commission would have broader application than the 3 areas of public life that are specified in the current harassment provisions. The Issues Paper discusses concerns raised by stakeholders about the meaning of ‘public place’ and the need to ensure that social media and other online spaces accessible to the public are included.

There is value in the law making explicit reference to particular scenarios to make a statement to the broader community. However, the definition of ‘public place’ in section 18C of the Racial Discrimination Act is sufficiently broad to capture social media and online spaces. It has been successfully applied to conduct through social media posts, written publications and online publications.122 It is not just the individual or group who engages in the offensive conduct that may be held liable under these provisions; publishers of offensive conduct may also be liable. For example, in Clarke v Nationwide News Pty Ltd trading as Sunday Times,123 the respondent was found to have contravened section 18C of the Racial Discrimination Act for publishing various comments of others in hard copy and in an online forum that the respondent was a

Australian Human Rights Commission 36

Definitions of discrimination and defences

moderator for and had reserved the right to modify or not publish certain information.

Exemptions to harassment and offensive protections

The introduction of the offensive behaviour provisions would ensure consistency with the Racial Discrimination Act and would allow for intersectional complaints to be lodged concerning offensive conduct on the ground of more than one protected attribute. The Disability Royal Commission stated it expected exemptions to the prohibition on harassment would also be introduced equivalent to s 18D of the Racial Discrimination Act.

The introduction of a new offensive behaviour provision would restrict other human rights, including the right to freedom of expression. It is important that limits on these rights are prescribed by law, necessary to achieve the desired purpose and proportionate.

Freedom of expression is protected under Article 19 of the ICCPR, 124 and safeguards the ‘freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media’.125

The Human Rights Committee has affirmed that this right covers broad kinds of communication and can cover ‘expression that may be regarded as deeply offensive’.126 This right is not absolute and may be limited where this is provided for by law, in pursuit of a legitimate aim, and where it is necessary and proportionate to that aim. Restrictions on expression must only apply in limited circumstances,127 including for respect of the rights or reputations of others.128

To ensure that other human rights, including freedom of expression, are not inappropriately or disproportionately infringed, the Commission considers that exemptions to any offensive behaviour provisions should also be introduced into the Disability Discrimination Act.

Proposed way forward

The scope of protections against harassment and offensive behaviour has been the subject of continued debate. In 2017, the Parliamentary Joint Committee on Human Rights (PJCHR) inquired into Part IIA of the Racial Discrimination Act.129 The PJCHR heard a range of diverse views but was inconclusive in its recommendation, proposing a suite of options for consideration by Parliament that ranged from maintaining sections 18C and 18D to a number of possible amendments. Ultimately, the Racial Discrimination Act has not been amended and therefore the provisions remain unchanged.

Expanding the current harassment provisions in sections 35, 37 and 39 of the Disability Discrimination Act through the inclusion of a definition for harassment and broadening its application to more areas of public life could ensure greater

Australian Human Rights Commission 37

Definitions of discrimination and defences

and more effective protections for people with disability. However, this would create greater disharmony across the federal discrimination laws. The Commission therefore recommends an approach that is consistent with the Racial Discrimination Act.

Recommendation 15: Sections 35, 37 and 39 of the Disability Discrimination Act 1992 (Cth) should be replaced with offensive behaviour provisions in the same terms, and similar exemptions, as sections 18C and 18D of the Racial Discrimination Act 1975 (Cth).

New provision on vilification

The Issues Paper refers to ‘vilification’ as ‘[a] public act that could incite hatred, serious contempt or severe ridicule towards a person or group’.130 This sets a higher threshold to capture conduct that is more serious and harmful than harassment and offensive behaviour. In addition to amendments to Disability Discrimination Act provisions to protect against harassment, the Disability Royal Commission recommended the introduction of a civil prohibition against threats to perpetrate or encourage violence or serious abuse that incites hatred.131

At the time of that recommendation, the Criminal Code Act 1995 (Cth) criminalised certain vilifying conduct on the ground of certain protected attributes,132 which did not include people with disability. The law provided limited protections that applied only to very serious conduct in limited circumstances. In February 2025, the law was amended to expand protections against vilification.

Criminal vilification protections

The Criminal Code Amendment (Hate Crimes) Act 2025 (Cth) expanded the existing vilification offences, including to introduce new offences, protect a broader list of attributes including disability, and recognise that offences may be engaged in on the ground of a combination of attributes. The law now covers a broader range of offences for advocating or threatening force or violence against targeted groups, including people with disability, or damage or destruction of real property or vehicles owned or occupied by a member of a targeted group, including people with disability.133

The amendments lowered the fault element for the pre-existing offences of ‘urging force or violence’ (now ‘advocating force or violence’) from ‘intention’ to ‘recklessness’ and removed the defence for ‘acts done in good faith’. The Commission raised concerns about the removal of both safeguards:

While the lowering of this threshold would promote certain human rights, including the right to life and security of the person, the right to equality and non-discrimination, the right to protection from exploitation, violence and abuse, the lower culpability standard and subjective interpretation of whether a person is

Australian Human Rights Commission 38

Definitions of discrimination and defences

‘reckless as to whether force or violence may occur’ and its broader application has the potential to impose limitations on other human rights, including the right to freedom of expression … The current requirement to prove intent serves as a safeguard to preserve these other human rights and ensure that the offence is only charged and prosecuted in circumstances appropriate to warrant a penalty of up to 7 years imprisonment.

…

[T]he disapplication of [the good faith] defence for these offences removes an avenue for the court to consider the circumstances and context of the conduct and may result in further limitations on the rights of freedom of expression and freedom of assembly in ways that could inhibit legitimate debate, critique and expression.

The revised laws now operate more broadly, providing greater protections to persons with disability against vilification, and are more likely to be relied on due to the lower threshold for establishing the offence and the lack of available defences.

At the state and territory level, the Australian Capital Territory and Victoria have criminalised ‘inciting hatred’, ‘revulsion’, ‘serious contempt’ or ‘severe ridicule’ towards a person on the ground of protected attributes including disability.134 New South Wales, Queensland, Western Australia and South Australia have criminalised vilification but not on the ground of disability.135

Civil vilification protections

The Disability Discrimination Act currently only includes the provisions prohibiting harassment,136 which the Commission recommends be replaced with offensive behaviour provisions.

At the state and territory level, Tasmania, Victoria and the Australian Capital Territory, have enacted civil prohibitions against ‘inciting hatred’, ‘serious contempt’ or ‘severe ridicule’ (or ‘revulsion’ for Victoria and the Australian Capital Territory) towards a person on the ground of protected attributes including disability.137

The Queensland Government has paused amendments to its Anti-Discrimination Act 1991 (Qld) that would have expanded existing vilification provisions that prohibit inciting hatred or contempt, or severe ridicule on various grounds to protect persons with disability.138

New South Wales and South Australia have civil vilification provisions but not in relation to disability.139

Gaps in legislative framework

State and territory anti-vilification laws are inconsistent and do not all operate to protect persons with disability. Further, some states and territories have taken

Australian Human Rights Commission 39

Definitions of discrimination and defences

steps to pause amendments to legislation that would provide for greater protections.140

At the federal level, vilification offences have been expanded to introduce a broader range of offences for advocating or threatening of force or violence and damage to property, and to protect persons with disability. However, these relate to more serious forms of vilification and rely on decisions of prosecutors for action to be taken.

The Commission supports the introduction of vilification provisions in the Disability Discrimination Act to ensure a level of protection for people with disability and provide an avenue to seek redress for vilifying conduct. However, as noted by the Disability Royal Commission, if an offensive behaviour provision consistent with s 18C of the Racial Discrimination Act is implemented, more serious vilification would likely be caught by that provision.141 The Commission agrees that there may be little need for additional civil vilification protections.

Notwithstanding that the introduction of civil vilification provisions would send a message to the community, the provisions would not create additional protections or avenues for recourse for people with disability than would be available through the proposed offensive behaviour provisions. The law should not be overcomplicated by addressing matters that are wholly addressed elsewhere.

Consideration should be given to the need for any additional protections against vilification in the Disability Discrimination Act 1992 (Cth) if offensive behaviour provisions (including exemptions) are implemented.

Unjustifiable hardship

The Disability Discrimination Act includes a defence of unjustifiable hardship to a claim of discrimination in almost all areas specified in Divisions 1 and 2 of Part 2 of the Disability Discrimination Act, as well as in the provision of reasonable adjustments.142

In determining whether unjustifiable hardship is imposed, all relevant circumstances of the particular case must be considered, including the list of non-exhaustive considerations set out in section 11 of the Disability Discrimination Act:

• the benefit or detriment likely to accrue or be suffered by any person concerned,
• the effect of the disability on the person,
• the financial circumstances and estimated expenditure required to be made,
• financial circumstances of the parties and

Australian Human Rights Commission 40

Definitions of discrimination and defences

• any action plans registered with the Commission.143

The 2009 amendments to the Disability Discrimination Act introduced the consideration of the availability of financial and other assistance to the duty holder144 to allow ‘a more balanced assessment of the costs of making adjustments’.145 This consideration of cost can be misconstrued as being limited to the detrimental financial cost to duty holders, rather than considering the overall net cost having regard to any benefits of compliance to respondent, and viewing these costs as a method of creating systemic benefits for an inclusive society.146

While the Act places the burden of proof on the person claiming unjustifiable hardship, there is no requirement for the duty holder to disclose the reasons that they consider the unjustifiable hardship defence to be available to them.

The Disability Royal Commission observed that, from the perspective of a person with disability, the defence of unjustifiable hardship usually arises at stage of a complaint of discrimination being lodged, after discrimination has occurred or after a decision has been made by the duty holder to not provide an adjustment.147 The absence of an obligation on the duty holder to disclose how the decision was arrived at can disadvantage a person with disability in responding to or challenging the claim, in litigation and in earlier attempts at dispute resolution. 148

To remedy this, the Disability Royal Commission recommended the addition of 2 mandatory factors to the list of considerations in assessing unjustifiable hardship in section 11 of the Disability Discrimination Act:

• the extent of the duty holder’s consultations with any person with disability concerned
• available and appropriate alternative measures or actions.149

These additions align with guidance from the CRPD Committee that the provision of reasonable adjustments should be negotiated with the person requesting the adjustment.150 The Commission supports these additions, which will be beneficial to both duty holders and people with disability.

The Issues Paper seeks views on an alternative and new definition of unjustifiable hardship in line with the Productivity Commission’s 2004 recommendations. The example definition proposed is ‘where the benefit to the person and community would be outweighed by the detriment and cost to any person concerned’ with the possible addition of a requirement to consult with the person with disability.

This generalised definition is too narrow; it brings some specificity to the first factor to be considered in the assessment of unjustifiable hardship that is currently in the Act but removes the remaining factors as well as the broad and

Australian Human Rights Commission 41

Definitions of discrimination and defences

necessary requirement to consider ‘all relevant circumstances of the particular case’.

The Commission is concerned such a definition would lead to more variability in assessments and decision-making. Notwithstanding that the final determination on whether there would be unjustifiable hardship is a matter for the courts, the provisions should, and do, also serve as a decision-making aid for duty holders. It is unlikely that a cost versus detriment definition would be applied by a duty holder in the same way that a court would.

The Commission supports the Disability Royal Commission’s recommendation that maintains a weighing of a number of factors, with additional guidance on considerations and a broad clause around consideration of all the circumstances.

The recommendations concerning adjustments (addressed earlier in this section) and unjustifiable hardship focus on collaboration between the duty holder and person with disability. Taken together, they should go some way to enable supported discussions that aid in dispelling the misconception that costs associated with removing barriers are detrimental for businesses. The Commission hopes this will lead to the removal of barriers and create greater inclusion of all people, providing social and financial benefits for the wider community.151

Recommendation 16: Section 11 of the Disability Discrimination Act should be amended to insert the following additional considerations:

(1)(aa) the nature and extent of the first person’s consultations with any person with disability concerned;

(ab) the first person’s consideration of all available and appropriate alternative measures or actions.

The second part of recommendation 4.32 made by the Disability Royal Commission is to introduce 2 requirements for duty holders relying on unjustifiable hardship to:

• create and retain all documents recording the person’s consideration (if any) of each of the factors set out in the Act
• provide reasons, if requested, for contending that unjustifiable hardship existed.152

The Commission supports the second proposed requirement, which aligns with principles of procedural fairness. In the Commission’s view, the first proposed requirement for all documents be retained is overly prescriptive and would be too burdensome on duty holders. The requirement to provide reasons for claiming the defence should be sufficient to achieve transparency and afford procedural fairness to people with disability.

Australian Human Rights Commission 42

Definitions of discrimination and defences

A similar requirement exists in the Fair Work Act and its associated National Employment Principles for employers to provide written explanation of the grounds for denying a flexible work arrangement.153

Recommendation 17: Section 11 of the Disability Discrimination Act 1992 (Cth) should be amended to insert a requirement for duty holders to provide reasons, if requested, for contending that unjustifiable hardship existed at the time of alleged unlawful discrimination.

Inherent requirements of particular work

Under the Disability Discrimination Act, employers are required to offer equal employment opportunities to everyone. This means that, if a person with disability can perform the core activities or ‘inherent requirements’ of a role, then that person should have the same opportunity to do the job as anyone else.

Section 21A of the Disability Discrimination Act provides that it is not unlawful to discriminate against a person with disability in relation to particular work if the person with disability is unable to undertake the ‘inherent requirements’ of a role due to their disability, even with reasonable adjustments having been made.154

The Age Discrimination Act also provides for a defence of ‘inherent requirements’ and requires the same factors to be considered in determining ‘inherent requirements’ as in the Disability Discrimination Act.155 The Fair Work Act includes a similar defence but does not require consideration of reasonable adjustments provided by the employer.156 The Disability Royal Commission also considered the difference in formulation of inherent requirements between the Disability Discrimination Act and the Fair Work Act, but did not recommend legislative amendments in this regard.157

The Disability Royal Commission heard compelling evidence that the inherent requirements defence creates both attitudinal and tangible barriers to the employment of people with disability.158 This corroborates evidence heard by the Commission in our Willing to Work Inquiry that some employers are unwilling to remove requirements, even where it is not an inherent requirement of the job or where simple adjustments could be made to overcome the barrier.159 The Commission also receives complaints about discrimination in employment caused by allegedly mistaken conclusions or assumptions that the complainant was not able to perform the inherent requirements of the role.

The Disability Discrimination Act does not include a definition of inherent requirements, nor the criteria for determining what requirements are inherent to a given role.

Australian Human Rights Commission 43

Definitions of discrimination and defences

The current test for whether a person with disability is able to undertake the inherent requirements of a role requires consideration of 3 factors:

• past training, qualifications and experience
• the person’s performance at work, in cases where they are already employed, and
• any other factors that are reasonable to take into account.160

Recommendation 7.26 of the Disability Royal Commission proposed 2 new factors to be included in section 21A of the Disability Discrimination Act:

• the nature and extent of any adjustments made
• the extent of consultation with any person with disability concerned.161

The Commission considers that any amendments to the inherent requirements provisions should balance the need to remain general enough so as to be applicable to a broad range of employment contexts, afford flexibility, and be responsive to individual needs. The additions proposed by the Disability Royal Commission achieve these objectives, while providing greater clarity to employers on 2 relevant considerations for the assessment of inherent requirements. The encouragement to consult with the person with disability is key and should assist with addressing the underlying issues of employers making prejudiced decisions about a person’s capacity.162 It will also bring the Disability Discrimination Act in line with CRPD standards and obligations.

Recommendation 18: Section 21A(2) of the Disability Discrimination Act 1992 (Cth) should be amended to include 2 additional factors to be taken in account:

• the nature and extent of any adjustments made
• the extent of consultation with any person with disability concerned.

The Issues Paper seeks views on any other legislative amendments to the definition of inherent requirements, including factors that should be considered when deciding whether a person could carry out these requirements. This was not the subject of a Disability Royal Commission recommendation. There is a risk that introducing more statutory criteria could be overly prescriptive and inadvertently limit or narrow the flexibility, scope and innovation around inherent requirements.

Counsel assisting the Disability Royal Commission made several suggestions on actions to address the low expectations and assumptions sometimes held by employers that the existence of disability inherently creates a risk that needs to be mitigated and managed.163 These included taking different approaches to job design (such as job customisation) and diversifying measurements of an employee’s capacity to meet job requirements away from a sole reliance on medical assessments.164

Australian Human Rights Commission 44

Positive duty to eliminate discrimination

The evaluation of the Commission’s IncludeAbility (Equality at Work) project found that barriers to employment for people with disability are complex and relate to the operating environment of each particular employer.165 These organisational drivers were often found to be ‘hidden’ in an organisation’s business as usual activities, such as accepted KPIs and job descriptions with outdated inherent requirements for a role, that were often unrevised for long periods of time.166 The evaluation pointed to the need for mechanisms to make visible these barriers within each organisation and a bespoke approach developed to addressing them.167

One example of the need to leave room for innovation around ways of working is during the COVID-19 pandemic where requirements were quickly adapted to fit restrictions on movement imposed by government. Many of the changes introduced were done so out of necessity and went far beyond what employers would previously have considered as possible or even desirable prior to the pandemic. Yet, many employees with disability reported benefitting from some of the measures.

It is critical that the Disability Discrimination Act be future proofed so as to set the conditions for substantive equality all the while leaving room for innovations to emerge in step with changes in the job market and technological and other advancements. These types of approaches to inherent requirements are outside the scope of what can be encoded in the Disability Discrimination Act. It is also likely that the introduction of a positive duty to eliminate discrimination will assist in this by, for example, encouraging employers to think about job design at an earlier stage.

The Productivity Commission considered amendments to define inherent requirements but, instead, favoured the non-regulatory option of developing Guidelines as a more practical approach.168 The Commission agrees that guidance materials, rather than legislative amendments, are the best way to support employers in decisions relating to inherent requirements. Guidance material could include helpful jurisprudence and be updated to include contemporary examples of good practice as they emerge and provide clarification on the relationship between Disability Discrimination Act and work health and safety requirements.

4 Positive duty to eliminate discrimination

The Disability Discrimination Act should be amended to include a positive duty to take reasonable steps to eliminate discrimination, as far as possible. A positive duty would mean that duty holders have to take proactive steps to prevent disability discrimination from occurring, rather than relying on people who have experienced discrimination to take action after harm occurs.

Australian Human Rights Commission 45

Positive duty to eliminate discrimination

Introducing a positive duty aligns with Australia’s human rights obligations, including the CRPD, to promote equality and inclusion for people with disability.

The duty should apply to all areas of public life covered by the Disability Discrimination Act and be implemented in stages.

Learnings from the Commission’s implementation of a positive duty in the Sex Discrimination Act (supplemented at Appendix A) demonstrate the impact of such a duty. Recommendations are made for improvements to enforcement powers and adequate resourcing for the Commission to effectively undertake enforcement and educate duty holders on the proposed positive duty in the Disability Discrimination Act.

The CRPD affirms that the realisation of the right to equality and non-discrimination requires States Parties to comply with positive obligations.

The most significant reform proposed in the Issues Paper is the introduction of a positive duty to eliminate disability discrimination, harassment and victimisation in all areas of public life protected under the Disability Discrimination Act.

This is in response to Disability Royal Commission findings that Australia’s system of federal discrimination law often does not address systemic problems.169 Systemic remedies can result through conciliation, but courts are unlikely to order them as the Discrimination Acts do not explicitly authorise systemic remedies, and because the focus of a court is on the achievement of justice for the individual, after the fact. Ideally, systemic changes can be made early, when problems are first identified, preventing the need for an individual to go to court altogether.170

Costs and benefits of a positive duty

People with disability have the right to full and equal enjoyment of all human rights and fundamental freedoms, including respect for their inherent dignity and individual autonomy. The essential characteristic of federal discrimination law is prohibition on discrimination in respect of particular attributes, such as disability, in specified areas of public life. The burden of pursuing a remedy rests on individuals.171 The reliance on individuals bringing a formal complaint means that many incidents of discrimination and harassment go unaddressed.172

While many complaints are made under the Disability Discrimination Act, its operation has not led to necessary changes in policy, practice, behaviours and attitudes. This is evidenced, for example, by the fact that the employment rate of people with disability remained stagnant at around 53% for 25 years and only recently increased by 7%.173 Further evidence is that people with disability continue to be forced (at times by lack of alternative suitable options) into segregated education, employment and living settings.174

Australian Human Rights Commission 46

Positive duty to eliminate discrimination

The evidence provided to the Disability Royal Commission demonstrated how the violence, abuse, neglect and exploitation of people with disability can alter life trajectories and affect life outcomes.175

Modelling undertaken on behalf of the Disability Royal Commission suggested that in 2021-22 the impacts and costs of violence against, and abuse, neglect and exploitation of, people with disability in Australia was ‘conservatively estimated’ to be $46 billion.176 If more gaps in outcomes for people with disability were taken into account, the estimate is as high as $74.7 billion.177 This cost is borne by employers, governments and victims.

Australia has the opportunity to invest in better health outcomes and economic outcomes for people with disability by adopting a positive duty that requires proactive action by duty holders. As outlined in the Free & Equal 2021 Position Paper:

There are likely to be significant benefits that would flow to businesses from an approach grounded in a positive duty – particularly in avoiding legal actions and damage to business reputation, and in avoiding unseen costs of discrimination, such as loss of productivity, morale, and the potential that diversity offers business. Support to business should be prioritised and appropriately funded to ensure this benefit flows.178

In its 2004 review of the Disability Discrimination Act, the Productivity Commission highlighted the potential to ‘increase the productive capacity of the economy’ by enhancing the participation of people with disability in education and employment,179 benefits that could be compounded by reducing discrimination in several areas simultaneously.180 The potential for increased economic benefits resulting from reform to discrimination law remain true and realisable, even twenty years after the Productivity Commission’s comments.

The introduction of a positive duty (alongside other reforms suggested in this submission) is one step that the Australian Government could take to pursue its current productivity agenda, which aims to be ‘practical, inclusive and forward looking’.181 While productivity is an important consideration, the costs, benefits and impacts that duty holders may experience must also be appropriately weighed against the impacts of discrimination on people with disability.

The scope of the proposed positive duty

As set out in the Issues Paper, a positive duty in the Disability Discrimination Act would require the duty holder to take reasonable and proportionate measures to eliminate, as far as possible, discrimination against people with disability.182

Unlike the more limited scope of positive duty in the Sex Discrimination Act, the proposed new positive duty in the Disability Discrimination Act would apply to

Australian Human Rights Commission 47

Positive duty to eliminate discrimination

any ‘person’ (natural and body corporate) with obligations under the Disability Discrimination Act in all areas of public life covered by the Act.

The Disability Royal Commission reiterated findings made by the Commission (in both our Free & Equal 2021 Position Paper and our Willing to Work Inquiry) that the current regulatory framework under the Disability Discrimination Act is not sufficiently protecting people with disability from discrimination and that the Act ‘creates little incentive for employers, schools, service providers and other duty-holders to take active measures to prevent disability discrimination’.183

The proposed positive duty would apply to anyone with existing obligations under the Disability Discrimination Act. The proposed positive duty shifts the onus and the focus of the legislation so that it requires these duty holders to proactively assess their compliance with these existing obligations. It would only apply to conduct that is already unlawful under the Disability Discrimination Act. It would clarify obligations and provide pathways for duty holders to be supported in how they approach non-discrimination.

As outlined in the Issues Paper, positive duty provisions now exist in the Discrimination Act 1991 (ACT), Anti Discrimination- Act 1992 (NT), and the Equal Opportunity Act 2010 (Vic).184 A positive duty in Western Australia is under development and a positive duty was introduced in Queensland, although its commencement has been indefinitely paused.185

These duties are each framed slightly differently but broadly require duty holders to take proactive steps to eliminate discrimination on the basis of a number of protected attributes (including disability) in several areas of public life.

The shift toward preventing unlawful conduct from happening in the first place, rather than reacting to conduct after it has occurred and already caused harm, is therefore not a new concept.

For the majority of duty holders, the proposed amendments will build on existing practices to more explicitly and proactively prevent unlawful conduct under the Disability Discrimination Act. Very few duty holders who would be covered under the proposed amendments to the Disability Discrimination Act, will have no experience implementing a positive duty.186

Shifting the emphasis of the Disability Discrimination Act to prevent discrimination from occurring will provide better outcomes for people with disability. People with disability experience discrimination in all areas of public life. The positive duty should not be artificially limited in its scope. The positive duty should apply to all existing duty holders under the Disability Discrimination Act, in all areas of public life.

Australian Human Rights Commission 48

Positive duty to eliminate discrimination

In August 2023, the Commission published guidance materials, including the Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) (SDA Guidelines). The Guidelines set out seven Standards and 4 Guiding Principles that the Commission expects all duty holders to meet to satisfy the positive duty.

The Commission has nearly 2 years of experience utilising the regulatory and enforcement powers in the Australian Human Rights Commission Act and assessing compliance against these Guidelines. Duty holders with obligations under the Sex Discrimination Act also have nearly 3 years’ experience in meeting the requirements of the positive duty under the Sex Discrimination Act. These duty holders are familiar with operationalising the 7 Standards and 4 Guiding Principles in relation to unlawful conduct covered by the Sex Discrimination Act.

The existing enforcement framework, including the Standards and Guiding Principles, can be substantially replicated to apply to the new positive duty in the Disability Discrimination Act.

Similar to the Commission, state and territory regulators of positive duties have developed standards against which compliance with their respective positive duties is measured. Positive duties in many States and Territories already cover discrimination against people with disability and, therefore, duty holders in these jurisdictions will already be taking steps to comply. The standards developed in these jurisdictions also reflect the seven Standards developed by the Commission.

Furthermore, the Commission’s Equality at Work Project (Project) supports private and public sector employers to identify and remove barriers to the employment of people with disability in their organisations. Many of the Project activities resemble co-regulatory and other stewardship activities that the Commission could undertake in the implementation of a positive duty under the Disability Discrimination Act. The independent evaluation of the Project, scheduled for publication at the end of 2026, will consider the transferability of the SDA Guidelines to the context of employment of people with disability.

The development of a framework and standards for a positive duty under the Disability Discrimination Act should nonetheless be tested via consultation from people with disability and relevant stakeholders as necessary.

Recommendation 19: The Disability Discrimination Act 1992 (Cth) should be amended to introduce a positive duty on all duty-holders under the Act to eliminate disability discrimination, harassment and victimisation as far as possible. The positive duty should be modelled on the positive duty in the Sex Discrimination Act 1984 (Cth).

Australian Human Rights Commission 49

Positive duty to eliminate discrimination

Staged approach to implementation

To ensure that there is broad understanding of the actions required as a result of a positive duty in discrimination law, and to enable duty holders time to assess their current business practices, it is appropriate to stage the introduction of a positive duty. Implementation could be staged in a number of ways.

In 2023, the Discrimination Act 1991 (ACT) was amended to include a positive duty to make reasonable adjustments to accommodate a person’s particular needs arising from a protected attribute (i.e. not limited to disability) and a positive duty to eliminate discrimination across all protected attributes and all areas of public life. These positive duties were implemented in stages. First, the positive duty to make reasonable adjustments commenced for all duty holders in April 2024. Next, the positive duty to eliminate discrimination, which relates to all protected attributes in the Discrimination Act 1991 (ACT), has 2 stages of implementation. From April 2025 the positive duty applies to ‘any ACT government administrative unit, territory authority and territory instrumentality and any individual with organisational management responsibility for any of these entities’.187 From April 2027, the positive duty applies to all other duty holders. For example, service providers, employers, education providers, accommodation providers, health service providers.188

Noting the amendments to the Disability Discrimination Act may include a similar positive duty to make reasonable adjustments and a positive duty to eliminate discrimination, and the possibility of enforcement action (and possibly civil penalties) for non-compliance, there is value in sequencing implementation of the duty to provide adjustments, then the duty to eliminate discrimination.

Another approach could be to stage the implementation of the positive duty across different areas of public life. As employers are now already familiar with applying the positive duty in the Sex Discrimination Act in the employment setting, employment could be a sensible place to start. Similarly, there are existing like frameworks in education that could be leveraged and enhanced to be included in the first phase of implementation. This should go some way to addressing systemic discrimination faced by people with disability in both education and employment. Notwithstanding this, people with disability will have views on which areas of public life should be prioritised. Staging should be informed by these views.

In our Free & Equal 2021 Position Paper, the Commission recommended a 12-month implementation period before a positive duty came into effect.189 Lessons learned from the implementation of the positive duty under the Sex Discrimination Act, when combined with the need to develop guidance in consultation with people with disability, and provide education and raise

Australian Human Rights Commission 50

Positive duty to eliminate discrimination

awareness of the new obligations, contributes to the Commission’s recommendation for a staged approach to implementation, across 18 months.

Recommendation 20: The implementation of the positive duty to eliminate discrimination in the Disability Discrimination Act 1992 (Cth) should be staged across 18 months.

The Commission also recommends a statutory requirement for an independent review of the positive duty within 5 years of commencement. A similar requirement is included in the Sex Discrimination Act, although with a shorter timeframe of 2 years. As the positive duty seeks to create cultural changes within organisations, a longer timeframe for review would be more conducive to measuring the impact of these changes on the experiences of rights holders.

Recommendation 21: The Disability Discrimination Act 1992 (Cth) amendments should include a statutory requirement for review of the implementation of the positive duty within 5 years of commencement.

Regulatory landscape

The Disability Royal Commission suggested that the preferable approach to enforcement of a positive duty in the Disability Discrimination Act would be to empower the Commission to identify and respond to breaches of the duty. This suggestion is repeated in the Issues Paper.

The Commission notes that the regulatory and legal landscape around preventing discrimination in Australia can be complicated to navigate. This impacts people who experience discrimination, duty holders and regulators. In part, complexities arise from Australia’s federal system. Federal anti-discrimination laws overlap with state and territory anti-discrimination laws to a significant degree, providing people with different avenues to complain about discrimination.

Further complexities arise in some areas of public life where different laws regulate aspects of disability discrimination. Australia’s employment law regime – comprised of laws around anti-discrimination, work health and safety regimes and fair working conditions – is one example of a well-established model where jurisdiction can overlap with some aspects of disability discrimination protections. The establishment of new authorities like the National Student Ombudsman and Aviation Ombuds are further examples.

The Australian Government’s Regulatory Policy, Practice and Performance Framework sets out 6 principles for designing and implementing regulation that is fit for purpose.190 One of the principles relates to integrating regulation into existing systems to avoid overlapping and / or incompatible regulatory systems.

Australian Human Rights Commission 51

Positive duty to eliminate discrimination

The regulatory architecture underpinning a positive duty in the Disability Discrimination Act should meet the government’s principles of regulation and achieve the objective of eliminating discrimination. Further consideration is needed as to the role that the Commission can have as regulator within this architecture. For example, questions on the application of a positive duty in relation to the Disability Standards are raised at section [x] of this submission or issues raised below about the Commission’s current regulatory powers and how these can be strengthened.

The Commission is well-practiced at managing complementary and mutually reinforcing legislative schemes in our investigation and conciliation services and our positive duty regulatory functions under the Sex Discrimination Act. As outlined in this submission, the Commission strongly supports the introduction of a positive duty under the Disability Discrimination Act. The Commission should have a role regulating the implementation of a positive duty under the Disability Discrimination Act and would do so in line with the Commonwealth Regulator Performance Framework and its best practice principles.

Strengthening the Commission’s regulatory powers

The Sex Discrimination Act provides the first example of a positive duty in federal discrimination law.191 A positive duty to take reasonable steps to eliminate sexual harassment, sexist conduct and related victimisation in workplaces was introduced in direct response to findings in the Commission’s 2020 report Respect@Work.

The introduction of a positive duty in the Disability Discrimination Act provides an opportunity to learn from the implementation of the positive duty in the Sex Discrimination Act. Detailed early learnings are presented in Appendix A.

At present, the Commission’s regulatory framework for enforcing compliance with the positive duty in the Sex Discrimination Act is not consistent with the more robust frameworks of comparable regulators. Both the work health and safety and Fair Work frameworks, which also regulate work-related sexual harassment, include the ability of the regulator to either seek civil penalty orders or refer matters for criminal prosecution for serious breaches of the law.

The Commission has identified 4 key areas that could be strengthened by regulatory reform to ensure the Commission can more effectively enforce compliance with the positive duty in the Sex Discrimination Act, and that should form part of the regulatory framework under the Disability Discrimination Act.

In our 2021 Free & Equal Position Paper, the Commission called for regulatory powers reflecting the responsive regulation pyramid, based on the work of Professors Ian Ayres and John Braithwaite192 This model reflects that different tools are required to achieve compliance with the law, depending on the

Australian Human Rights Commission 52

Positive duty to eliminate discrimination willingness and capacity of individuals and organisations. While the Commission can currently enter into enforceable undertakings, and engage with duty holders around breaches (or suspected breaches) of the positive duty in the Sex Discrimination Act, it does not have the ability to ‘move up’ to more punitive enforcement action at the top of the regulatory pyramid.

Key limitations identified by the Commission through our early experience as a regulator of the positive duty in the Sex Discrimination Act are summarised below, with further detail provided in Appendix A.

• Civil penalty provisions
  • The Commission does not have the full suite of enforcement powers to reflect a responsive regulatory pyramid. In particular the Commission does not have the power to seek civil penalty orders where there is a failure to comply with the positive duty.
  • In 2025, the ALRC recommended the law be amended so that a person who breaches the positive duty in the Sex Discrimination Act may be ordered to pay a civil penalty.193 This recommendation was repeated in the Commission’s recent Speaking from Experience report.194
• Penalties for failure to comply with Commission statutory notices or interference with the Commission’s administration and enforcement of the positive duty
  • Penalties for non-compliance with Commission statutory notices or interference with the Commission’s administration and enforcement of the positive duty are lower than penalties in other regulatory schemes and may not be adequate to deter duty holders from non-compliance or from non-cooperation with the Commission’s administration and enforcement of the positive duty.
• Production of information
  • The Commission cannot require the production of information or documents from duty holders (or others) until after an inquiry has commenced. This means it is reliant on the voluntary production of documents to inform assessments of whether to commence an inquiry, making it harder to gather the information needed to form the requisite suspicion that non-compliance has occurred.
• Limitations on the Commission’s ability to share information
  • The Commission is prevented by legislation from sharing identifying information about duty holders. This includes:
    • sharing identifying information or referrals with regulators that have overlapping jurisdictions.

Australian Human Rights Commission 53

Positive duty to eliminate discrimination

• publishing identifying information, including the name of a duty holder under consideration for, or subject to, the Commission’s compliance and enforcement activities.

These limitations on the Commission’s powers create unnecessary regulatory complexities and inefficiencies that are likely to be magnified with the introduction of a positive duty in the Disability Discrimination Act. Amendments are required in the Australian Human Rights Commission Act to ensure the Commission can efficiently and effectively take action to address unlawful discrimination. The below recommendations are framed to apply to the Commission’s existing role as regulator of the positive duty in the Sex Discrimination Act and potential role as regulator of a positive duty in the Disability Discrimination Act.

Recommendation 22: Civil penalties for breach of the positive duty should be introduced into the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth).

Recommendation 23: Penalties for non-compliance or ‘interference’ with the Commission’s administration and enforcement of the positive duty in the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) should be increased.

Recommendation 24: The Australian Human Rights Commission Act 1986 (Cth) should be amended to provide the Australian Human Rights Commission with information-gathering powers to monitor and enforce compliance with the positive duty in the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) prior to a formal inquiry commencing.

Recommendation 25: The Australian Human Rights Commission Act 1986 (Cth) should be amended to enable better information sharing with other regulators and the public. The scope of these amendments should be considered and informed by the independent review of the positive duty in the Sex Discrimination Act 1984 (Cth) due to commence in 2026.

Resourcing regulation of the positive duty

If implemented, the introduction of a positive duty in the Disability Discrimination Act (and other reforms discussed in this submission) would significantly expand the functions and powers of the Commission with respect to disability discrimination.

The broader scope of the proposed positive duty in Disability Discrimination Act will increase the complexity of implementation and enforcement. Given that the most complaints received by the Commission are under the Disability Discrimination Act, it should be expected that a positive duty will require

Australian Human Rights Commission 54

Exemptions and co-regulatory mechanisms

substantially greater resources than are currently available for the implementation of the positive duty in the Sex Discrimination Act. The Commission is also aware, anecdotally, that some regulators with similar functions have much larger teams of investigators.

It is critical that the Commission is appropriately and sufficiently resourced to implement any new functions, particularly compliance and enforcement activities. This will necessarily involve significant education and other outreach, as well as support for the Commission, legal assistance providers and business peak bodies to be able to provide clear and accessible guidance about the positive duty.195

The impact of a positive duty will be significantly dampened if it is not sufficiently resourced.

Recommendation 26: Adequate and sufficient funding should be provided to the Australian Human Rights Commission as regulator of the duties in the Disability Discrimination Act 1992 (Cth). Funding should allow for the development of required guidance, including to undertake consultation.

5 Exemptions and co-regulatory mechanisms

Permanent exemptions in the Disability Discrimination Act need to be reviewed to assess whether they are still necessary and if they align with CRPD standards. Temporary exemptions should be defined, but the current process for granting such exemptions is fit for purpose.

Co-regulatory mechanisms are essential elements of a responsive regulation framework. The Disability Discrimination Act includes mechanisms for special measures and Disability Action Plans that should be enhanced to support compliance with a positive duty to eliminate discrimination.

Finally, the Disability Standards specify obligations in certain areas of life (education, transport, access to premises). There are also unresolved questions on how a positive duty would apply to these Standards. More robust and transparent reporting against the Standards is needed, as well as a broad review on their effectiveness and effectiveness.

Permanent exemptions

The Disability Discrimination Act sets out permanent exemptions for certain areas of public life in which conduct is permitted that would be otherwise be considered unlawful discrimination. There are currently 10 permanent exemptions in the Disability Discrimination Act. The Issues Paper seeks views on

Australian Human Rights Commission 55

Exemptions and co-regulatory mechanisms

whether any of the permanent exemptions in the Disability Discrimination Act can be narrowed or updated, while balancing other policy considerations.

Permanent exemptions, by design, impact or restrict the rights of people with disability. They reflect the circumstances and context of the time of their introduction based on the Government’s balancing of rights against policy priorities.

There is no statutory requirement to review whether permanent exemptions are effective, relevant, or appropriate. While there may be enduring justification for their continuation, exemptions run the risk of becoming obsolete and may not be reflective of the contemporary or changing needs and nature of society. They should be reviewed on a periodic basis to ensure that there remains a compelling justification for their continuation.

In recent years, the Commission has expressed concern about the scope and application of certain exemptions, as well as their misalignment with human rights obligations under the CRPD. This has arisen in response to the Government’s consultation on aspects of 2 exemptions:

• the Review of the Significant Cost Threshold,196 permitted under the exemption on migration in section 52 of the Disability Discrimination Act and
• the ban on the use of genetic information in life insurance,197 permitted under the exemption on superannuation and insurance in section 46 of the Disability Discrimination Act.

Reforms arising out of these consultations positively narrowed the scope of the 2 exemptions, but concerns remain as to whether, on the whole, they comply with Australia’s CRPD obligations, respectively under Articles 18 and 25. The Commission refers to our submissions to these consultations198 in which recommendations are made for a broad and comprehensive review of each of these exemptions.

These 2 and each of the other the permanent exemptions in the Disability Discrimination Act warrant consideration on their own merits and requires thorough assessment against the relevant policy and legislative context, both domestically and against international human rights law. The Commission repeats recommendations made in our 2021 Free & Equal Position Paper.

Recommendation 27: The Disability Discrimination Act 1992 (Cth) should be amended to introduce a requirement for permanent exemptions in sections 46-54 to be reviewed every 10 years, having regard to the following:

37. whether the scope of the exemption remains necessary, reasonable and proportionate in the circumstances.

Australian Human Rights Commission 56

Exemptions and co-regulatory mechanisms

38. whether the exemption should be
    • continued or removed, and
    • if continued, be time limited and regularly reviewed, or be sunsetted.
39. Australia’s international human rights obligations, giving specific regard to the United Nations Convention on the Rights of Persons with Disabilities.

The first such review of permanent exemptions should occur at the commencement of these legislative amendments.

The Free & Equal 2021 Position Paper discussed the distinction between ‘permanent exemptions’ and ‘temporary exemptions’ (discussed below). The Commission recommended clarifying these 2 concepts in federal discrimination law by introducing and defining the term ‘exception’ to replace permanent exemptions. Current exemptions in sections 46-54 of the Disability Discrimination Act should be considered as ‘exceptions’ under this new meaning.

Recommendation 28: The Disability Discrimination Act 1992 (Cth) should be amended to replace references to permanent exemptions with new terminology of ’exceptions’ to be defined as ’conduct which, but for the operation of the excepting provision, would be unlawful discrimination, but is permanently excepted from being considered such in the relevant Act’.

Temporary exemptions

The Issues Paper seeks views on whether a definition for temporary exemptions should be added to the Disability Discrimination Act.

Under section 55 of the Disability Discrimination Act, on application by a duty holder, the Commission is empowered to grant temporary exemptions from certain provisions of the Disability Discrimination Act.199 Temporary exemptions may be subject to certain conditions and can be granted for a term of no more than five years.200

The effect of a temporary exemption is that discrimination covered by the exemption is not considered to be unlawful under the Act, so long as the exemption remains in force. Accordingly, the activities covered by the exemption cannot be the subject of a complaint to the Commission.

Definition of a temporary exemption

The proposal to introduce a definition of a temporary exemption is to assist in distinguishing a temporary exemption from a special measure. This distinction is not always clear for duty holders, as evidenced by the fact that the Commission

Australian Human Rights Commission 57

Exemptions and co-regulatory mechanisms

regularly receives requests to issue a temporary exemption in circumstances where a duty holder is taking actions that may qualify as a ‘special measure’.201

There are key differences between the 2 mechanisms. A special measure is a positive action introduced to promote equality. A temporary exemption exempts particular conduct from being unlawful discrimination for a limited period for a particular short-term purpose, for example to provide time for a duty holder to comply with the Disability Discrimination Act.

Special measures are encouraged, whereas temporary exemptions are provided for in very limited circumstances.

The HRAD Bill 2012 included a provision which defined a temporary exemption as one that ‘exempts particular conduct of one or more persons or bodies (or classes of persons or bodies) from being unlawful discrimination’.202 As indicated in our Free & Equal 2021 Position Paper, the Commission supports the addition of this definition to provide clarity on the meaning of the term.203

Recommendation 29: The Disability Discrimination Act 1992 (Cth) should be amended to define ’temporary exemptions’ as ‘temporary permissive authorisation for conduct which, but for the operation of the exemption, would be unlawful’.

Granting a temporary exemption

The Issues Paper seeks views on whether any changes should be made to the legislative process for granting a temporary exemption. At present, the Disability Discrimination Act does not prescribe how the Commission should exercise our power to grant temporary exemption.

Temporary exemptions are not granted lightly. There are limited circumstances in which a temporary exemption is necessary or appropriate, with only a handful of applications being granted since 2018, and one that was not granted.

The Disability Discrimination Act provides limited broad criteria to guide the Commission in granting temporary exemptions. The Commission’s Guidelines on temporary exemptions under the Disability Discrimination Act outlines in detail how it approaches and assesses applications.

The process involves serious consideration by the Commission of the potential impact on rights and obligations and the consistency of the proposed exemption with the objectives of the Disability Discrimination Act. The assessment also involves consultation with members of the public, especially any interested or affected parties, on the application and any terms and conditions on which the exemption may be granted.

Australian Human Rights Commission 58

Exemptions and co-regulatory mechanisms

The Commission considers that the process as set out in these guidelines has been effective and that changes to the legislative process of granting a temporary exemption are not required.

Co-regulatory mechanisms

The Commission considers that 2 sections of the Disability Discrimination Act could be improved through effective co-regulatory mechanisms.

Co-regulation typically refers to the situation where industry develops and administers its own arrangements with legislative backing to enable the arrangements to be enforced and also crucially to provide industry with the confidence that they are protected from litigation if their measures comply with the legislative requirements.

There are existing co-regulatory measures in federal discrimination law that set out actions that can be taken lawfully by industry and therefore do not breach the law.204 However, these lack enforcement mechanisms to also ensure that industry complies with the measures – a fundamental element of a co-regulatory approach, especially in the regulation and enforcement of positive duties. They also lack certification processes that provide business confidence in undertaking measures.

In the context of the Disability Discrimination Act, the Commission recommended in our Free & Equal 2021 Position Paper the ability to certify special measures and an expanded role in relation to action plans.

Special measures

A special measure is a positive action used to promote equality for disadvantaged groups and, under section 45 of the Disability Discrimination Act, is not considered to be unlawful discrimination.

An example of a special measure under the Disability Discrimination Act would be a workplace setting a target of having a certain percentage of its workforce identify as having disability.

Although it does not prescribe a definition for special measures, the Disability Discrimination Act provides that an act will be a special measure if it is reasonably intended to:

• ensure equal opportunities to people with disability,205 or
• meet the special needs of people with disability in particular areas.206

The Issues Paper seeks views on the addition of a definition of special measure in the Disability Discrimination Act but does not provide suggested wording for a definition.

Australian Human Rights Commission 59

Exemptions and co-regulatory mechanisms

At present, the provisions around special measures in each of the 4 discrimination Acts differ from one another:

• The Disability Discrimination Act, as outlined above, allows for special measures that create equal opportunity or respond to special needs.207
• The Age Discrimination Act allows for ‘positive discrimination’ where this provides a bona fide benefit to persons of a particular age, meets an identified need for people of a certain age, or reduces disadvantage for people of a certain age.208
• The Racial Discrimination Act allows for special measures to be taken to foster greater racial equality, in line with purposes articulated in the CERD.209
• The Sex Discrimination Act allows for special measures for the purpose of achieving substantive equality between certain groups specified in the law.210

Despite their differences, all current provisions providing for special measures in the federal discrimination laws are focused on the intended outcome of ensuring substantive equality and are broad enough to provide some degree of liberty and discretion for duty holders as to what those actions might be. This is necessary to account for the different contexts and circumstances that duty holders are operating in.

The Commission is in favour of a clearer definition and repeats the recommendation from the 2021 Free & Equal Position Paper that a consistent definition should be replicated across the 4 federal discrimination Acts.

Recommendation 30: Section 45 of the Disability Discrimination Act 1992 (Cth) should be amended to clarify that the interpretation of what amounts to a special measure be aligned with the understanding of this term under international law and, in particular, that special measures be construed as positive measures to address disability.

The Issues Paper seeks views on whether the Commission should be granted powers to certify special measures. In our Free & Equal 2021 Position Paper, the Commission recommended the introduction of such a certification power as a co-regulatory tool that could be exercised by the Commission.

Currently, the Commission does not have a function to certify special measures. As noted above, businesses will occasionally request the Commission to grant a temporary exemption under discrimination law where they are intending to take actions that would be a special measure. The purpose of this request is to provide legal certainty that they will not be found in breach of the law by taking a measure to promote equality.

The Commission routinely denies such requests as they are not within the scope of our powers to grant exemptions.

Australian Human Rights Commission 60

Exemptions and co-regulatory mechanisms

Submissions to the Commission in our Free & Equal 2021 Position Paper received from the business sector supported introducing a certification power and noted that the absence of a compliance function for the Commission to issue special measures certifications contributes to greater uncertainty about the operation of the law.

This potentially affects the willingness of duty holders to take positive measures to promote equality and eliminate discrimination due to concerns that they may have discrimination actions brought against them.211

Industry groups consulted in Free & Equal were in favour of certification, provided that it was voluntary and that there was no disadvantage for a duty holder not obtaining a certificate.

The Commission repeats the recommendation it made in Reform 11 of our Free & Equal 2021 Position Paper, which applied to all federal discrimination laws.

Recommendation 31: The Disability Discrimination Act (1992) should be amended to:

• provide the Australian Human Rights Commission a power to issue special measures certification, as administrative decisions, subject to administrative review
• empower the Commission to consult with relevant stakeholders when deliberating on whether to certify a special measure
• limit certification for a period up to 5 years
• maintain certification as voluntary, with duty holders able to rely on existing provisions
• limit the certification power so as to not extend to the certification of legislative provisions as special measures.

Such a certification process requires resourcing. The Commission would likely develop guidelines under the Disability Discrimination Act on the application of special measures provisions in different settings, as well as develop tools for industry to assist in deliberations on whether to adopt measures.

The Commission would need to be resourced to undertake this guidance and educative work, as well as to process special measures certification requests.

Recommendation 32: The Australian Human Rights Commission should be adequately resourced to promote understanding of special measures under the Disability Discrimination Act 1992 (Cth) as well as to process applications.

Disability Action Plans

Action Plans under the Disability Discrimination Act (Disability Action Plans) are voluntary documents created by duty holders to provide a framework for how

Australian Human Rights Commission 61

Exemptions and co-regulatory mechanisms

their organisation will achieve the objects of the Act. 212 Disability Action Plans usually include proactive measures that strive towards the elimination of discrimination.

Duty holders have the option to register their Disability Action Plans with the Commission.213 If this occurs, the Commission must make a copy of the Disability Action Plan available to the public.214

The Disability Discrimination Act sets minimum provisions that must be included in Disability Action Plans215 but, as voluntary and non-binding documents, there is no mechanism for the Commission to hold duty holders to account for commitments made. The Commission has no legislated role in assessing the rigour of Disability Action Plans or to monitor or evaluate the implementation of a Disability Action Plan to ensure they adhere to any minimum standards.

Disability Action Plans may be a relevant factor in a court’s consideration of whether the defence of unjustifiable hardship applies to a claim of unlawful discrimination under the Disability Discrimination Act.216

There are over 650 Disability Action Plans registered with the Commission.217 However, the Commission observes that many of these are out of date due to the absence of a requirement for Disability Action Plans to cover a specified duration or to be updated on a periodic basis.

The proposals in the Issues Paper for enhancements to the Disability Discrimination Act Action Plan provisions are those that were put forward in the Free & Equal 2021 Position Paper as co-regulatory measures that should be attached to a positive duty.

The Commission maintains our view that these amendments would support duty holders in their implementation of a positive duty, including by making known their commitments towards building a culture that aims to prevent and eliminate discrimination.218

Requirements for Disability Action Plans are already included in the Disability Discrimination Act. These are expanded in the Commission’s 2021 Disability Action Plan Guide.219 In our Free & Equal 2021 Position Paper, we recommended amending the Disability Discrimination Act to require the Commission to only accept action plans that meet these requirements.

It should also be noted that the Commission is aware, anecdotally and through our role in registering Action Plans, that businesses and duty holders are increasingly opting for Diversity and Inclusion Plans that will usually incorporate disability related measures. This is further evidence in support of harmonised federal discrimination laws.

As discussed in the section on positive duty, the Commission will require significant resourcing in order to undertake these additional functions.

Australian Human Rights Commission 62

Exemptions and co-regulatory mechanisms

Recommendation 33: Part 6 of the Disability Discrimination Act 1992 (Cth) should be amended to:

• clarify that the Commission may provide advice on the development and implementation of action plans
• clarify that the Commission may set minimum requirements for action plans (such as through guidelines) and not accept action plans that fail to meet these requirements
• introduce a set timeframe within which action plans will lapse, and require that outcomes of the evaluation of previous action plans be provided to the Commission when submitting a subsequent action plan.

Disability Standards

Enforcement

The Issues Paper seeks views on ways to encourage greater compliance with, and enforcement of, the Disability Standards. The Commission has repeatedly stated that the enforcement mechanisms for the Disability Standards are not sufficient.220 The result is a hampering of the capacity of the Disability Standards to create the systemic change necessary to eliminate discrimination.

Currently, it is unlawful under the Disability Discrimination Act to contravene the Disability Standards.221 A contravention may be the subject of a complaint to the Commission by a person aggrieved. However, if a duty holder acts in accordance with the Standards, the provisions of Part 2 of the Disability Discrimination Act that prohibit discrimination do not apply.222

The purposes of the Disability Standards are to provide clarity to duty holders about their obligations and provide more detail on rights, equal access and equal opportunity for people with disability systematically.223

Under the Disability Discrimination Act, the Commission has functions to monitor the operation of the Disability Standards and report to the Attorney-General on this monitoring and on the development of standards.224 The Commission also has functions and powers to inquire into, and report on, matters that may relate to systemic unlawful discrimination,225 including in relation to the Disability Standards.

Without a regulatory framework, the Commission has limited capacity or powers to monitor the operation and implementation of the Disability Standards, outside of complaints handling. This could be addressed with the introduction of the positive duty to take steps to eliminate discrimination on the basis of disability. Further guidance on how the Disability Standards would operate in the context of a positive duty would be required. In particular, whether compliance

Australian Human Rights Commission 63

Exemptions and co-regulatory mechanisms

with the Disability Standards would be sufficient to meet the new positive duty or whether there would be additional requirements under the positive duty. Consideration should also be given to the most appropriate regulatory mechanisms for compliance with the Disability Standards themselves and with a positive duty. There are oversight bodies that already (or are planned to) have a role in relation to these Standards. For example, the Australian Building Codes Board (ABCB) oversees certification for building permits, a process which involves some level of assessing compliance with the Premises Standards. The new Aviation Ombuds is proposed to oversee the new Aviation Customer Charter, aspects of the draft Charter relate to accessibility and are likely to overlap with the Aviation Standards.

Different models exist in international jurisdictions (e.g. Canada and the United States) for the enforcement of accessibility requirements. These are worthy of consideration by Government in the context of the introduction of a positive duty in the Disability Discrimination Act.

Reporting

The Issues Paper seeks views on reporting mechanisms against the Standards. This is addressed for each of the Standards in turn.

Education Standards

Reporting on the provision of reasonable adjustments, which is one of many provisions in the Education Standards, is already in place through the Nationally Consistent Collection of Data (NCCD).

The NCCD is tied to funding granted to education providers and therefore not necessarily intended to be a true measure of all actions taken under the Standards to create equal opportunity in education. The NCCD is also restricted to primary and secondary schools and, therefore, excludes early childhood and tertiary education.

In response to its finding that there is ‘little comprehensive and consistent use of data to enable governments to monitor progress in addressing barriers to access, participation, and achieving learning and development goals’,226 the Disability Royal Commission recommended a national project be commissioned to develop minimum data requirements for students with disability, building on the NCCD.

Recommendation 7.9 of the Disability Royal Commission is extensive in its proposals for data development, collection, monitoring and reporting, and uses for the purposes of realising the right to education. The recommendation was accepted in principle by all governments, with a note that its implementation will require further consideration on how the intent of the recommendation can be implemented in each jurisdiction.227

Australian Human Rights Commission 64

Exemptions and co-regulatory mechanisms

The Commission continues to urge governments to fully implement recommendation 7.9. Improved reporting against the Education Standards should be developed in the context of this work.

Recommendation 34: The Education Ministers Meeting should publicly report on implementation of Recommendation 7.9 of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

Premises Standards

The Premises Standards contain the Access Code for Buildings, which is replicated from the National Construction Code (NCC) accessibility requirements. Certification is mandated under the NCC to assess suitability of builds.228 While the certification should be rigorous and consequential (in that it is linked to permissions to build), audits have not focused on compliance with the Premises Standards. Notwithstanding this, there may be few net benefits to introducing additional reporting requirements under the Premises Standards.

One ‘opportunity for action’ arising from the 2022 Review of the Premises Standards, action 3, was for the Department of Industry, Science and Resources to create a baseline assessment of a representative sample of new buildings or building works to test the types of data available and identify data that could be collected to measure compliance with the Standards.229 The Commission supports this action, but is unaware of any progress made by Government towards its implementation.

Recommendation 35: Treasury230 should publicly report on the implementation of Action 3 arising from the 2022 Review of the Premises Standards, including any barriers to implementation.

A complementary recommendation in the Review of the Premises Standards, action 2a, was for the Commission’s Guideline on the application of the Premises Standards be updated.231 This recommendation has not been implemented due to delays in the Commission being provided with dedicated resourcing to do so.

Transport Standards

The Commission commends the work of the Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts (DITRDCSA) in developing a non-mandatory reporting framework for the Transport Standards, as a result of statutory reviews of the Transport Standards.232 This will provide some level of transparency and monitoring by the general public.

A compliance reporting framework should seek to move away from a voluntary approach that does not guarantee reporting. An opt-in approach may

Australian Human Rights Commission 65

Exemptions and co-regulatory mechanisms

disincentivise providers to report on areas of non-compliance that could be viewed as discriminatory, and will maintain an unwillingness to report.

Mandatory reporting under the Transport Standards would align with Australia’s obligations under Article 31 of the CRPD and commitments made to report on compliance under Australia’s Disability Strategy 2021-2031. 233 It would also respond to the overwhelming support of a regulatory approach from the disability community in previous reviews of the Standards.234

An alternative would be for the Australian Government or the Commission to undertake an independent audit to establish and report on compliance. Either of these options would incur significant costs, and lessen the onus and responsibility on duty holders to meet their legal obligations.

Finally, in making the below recommendation, we support for the Australian Government’s stated intention to include mandatory reporting against the Aviation Standards once in force.235

Recommendation 36: The Australian Government should establish a national framework for mandatory compliance reporting against the Disability Standards for Accessible Public Transport 2002 (Cth).

Review of the Standards

There is a statutory requirement for each of the disability standards to be reviewed every 5 years.236 In our Free & Equal 2021 Position Paper, we recommended an independent review of the existing Disability Standards to consider their effectiveness in addressing unlawful discrimination, as well as the effectiveness of the current legislative, governance, policy and practice arrangements in place to implement and achieve compliance with the Disability Standards.237

Some of the amendments proposed in this Review of the Disability Discrimination Act should effect change in driving compliance with the Standards, especially the introduction of a positive duty to eliminate discrimination and corresponding regulatory powers and functions of the Commission.

Finally, the Commission commends the work of the Australian Government, and in particular DITRDCSA, in co-designing new Aviation Standards as one of several disability related initiatives introduced in the Aviation White Paper.238 There is merit in consideration being given to developing new Disability Standards for other areas covered by the Disability Discrimination Act,239 for example, around Digital Communication Technology.240

Australian Human Rights Commission 66

Definitions

6 Definitions

This section addresses the scope and elements of 3 terms in the Disability Discrimination Act:

• the benefits and limitations of the current definition of disability, and the potential implications of introducing a social model definition in law.
• the need to prevent the use of exclusionary discipline on children with disability all the while maintaining broad provisions in the Disability Discrimination Act to capture jurisdictional differences in terminology.
• the continued need for certain provisions around assistance animals training requirements.

Definition of Disability

Historically, disability has been defined based on what is ‘wrong’ with a person with disability. This is known as the medical model of disability, which views disability as a problem that needs to be fixed, treated or cured. This pervasive view perpetuates negative attitudes associated with disability and impedes true inclusion.

The social model of disability distinguishes between an impairment and disability:

• Impairment is part of being human and an individual characteristic that is just one attribute that makes up who a person is.
• Disability results from the way society responds to impairment. It is barriers within society that disables people with impairments.

The social model recognises that the inequality and discrimination faced by people with disability is not because of their impairment, but because of societal barriers, such as prejudice and stereotypes, inaccessible physical environments, and ableist laws, systems and processes.

The CRPD builds on the social model of disability by adding a human rights element. The human rights model reinforces that human rights cannot be denied or limited on the basis of impairment. People with disability have rights that cannot be breached just because they have an impairment. Together, the social and human rights models focus on removing barriers to enable people with disability to participate as equal members of society.241

The CRPD does not introduce a definition of impairment. Instead, it provides a non-exhaustive list of impairments that are within the scope of the treaty.242 This was done intentionally by the drafters to allow for the understandings of impairment and disability to evolve over time.243

Australian Human Rights Commission 67

Definitions

The definition of disability in the Disability Discrimination Act244 is essentially a definition of impairment. The definition is broad and inclusive, covering impairment that may have occurred in the past, may occur in the future or that is imputed. The definition is applied broadly by the Commission, as administrator of complaints, and by the courts.

The definition lists categories of impairments using deficit language, including the use of the words: ‘loss’, ‘malfunction’, ‘malformation’, ‘disfigurement’, ‘disorder’, ‘illness’, ‘disease’ or ‘disturbed’. This type of language reinforces ableist stereotypes, perpetuates an outdated medical model of disability. The Commission proposes that the language be updated to remove the deficit language. This would contribute to capturing more contemporary understandings of disability, such as neurodivergence.

The Commission also notes that the current definition of disability is sufficiently broad and clear to ensure that people with disability are able to prove that they have disability under the Disability Discrimination Act. While people with certain medical conditions such as HIV or mental health conditions, may not identify with the language of the Act, they are considered to have disability for the purposes of the protections in the Disability Discrimination Act.

Overall, the Commission’s experience in administering the Disability Discrimination Act is that the definition of disability operates effectively from a practical standpoint. It ensures that people with disability are clearly and practically identified so the focus is on the discrimination itself. Any amendments should therefore be limited to modernising the language to remove deficit-based terminology.

This would be in contrast to broader reform that would replace the existing approach with the introduction of a social model definition in the Disability Discrimination Act.

Lessons can be learned from the United States of America where the Americans with Disabilities Act 1990 (ADA) introduced a definition based on the social model. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. 245 Interpretation of the ADA showed a tendency to focus on the limits of the protected class, focusing on identifying whether a person has an impairment that has a significant effect on their ability to perform a major life activity, instead of focusing on the discrimination itself. This often led to courts failing to consider whether unlawful discrimination had occurred, resulting in a narrow interpretation of the protections provided by the ADA. Attempts have been made to amend the definition of disability in the ADA to reinstate a broad construction of the definition of disability.246 However, the courts have continued to rely on the social model definition of disability, maintaining a focus on establishing whether a person meets the definition of

Australian Human Rights Commission 68

Definitions

disability within the law, rather than focusing on identifying and remedying the barriers experienced because of their impairment.

Any amendments to the definition of disability in the Disability Discrimination Act should seek to preserve its broad application so that everyone with disability is protected by the law. Consideration should be given to removing deficit language.

The Issues Paper notes but does not seek views on the Disability Royal Commission’s recommendation to amend the Fair Work Act to ensure a definition of disability that is consistent with the Disability Discrimination Act. The Commission supports the amendment, noting it is beyond the scope of the present Review.

Exclusionary discipline and suspension

In the course of its inquiry, the Disability Royal Commission received evidence about the inappropriate use of exclusionary disciplines in schools in response to perceived negative or disobedient behaviour.247

This concern was raised in the 2019 Review of Australia’s implementation of the CRPD, where the CRPD Committee observed a ‘significant increase’ in students with disability in educational settings experiencing exclusion, segregation and isolation in Australia.248 The Commission is aware that these practices are ongoing as it remains one of the predominant areas of complaint about disability discrimination in school education. The framing of these practices as ‘discipline’ does not adequately capture the range of practices that are subject of complaints.

The Commission accepts and corroborates findings made by the Disability Royal Commission that these practices diminish the enjoyment of the right to access education on an equal basis with others. The Disability Royal Commission pointed to negative impacts these practices can have in the long term, as is demonstrated in research linking school disengagement with a risk of early criminalisation of children with disability.249

The Disability Discrimination Act prohibits discrimination on the basis of disability in education, as well as other areas of public life. Section 22(2) specifically addresses discrimination against a student on the ground of disability by:

• Denying, or limiting, the student access to any benefit provided by the educational authority;
• expelling a student; or
• subjecting the student to any other detriment.250

Australian Human Rights Commission 69

Definitions

The Age Discrimination Act and Sex Discrimination Act include similar provisions, drafted in a consistent way to the Disability Discrimination Act.251

The Disability Royal Commission’s Recommendation 7.2 on measures to prevent the inappropriate use of exclusionary discipline against students with disability calls on states and territories to adopt consistent measures in regulation, rules and procedures. It is in the context of this broad recommendation, that the Disability Royal Commission proposed amendments to section 22(2)(b) of the Disability Discrimination Act to insert ‘suspension and exclusion’, in addition to the existing provision on expulsions.

The Disability Royal Commission acknowledges that suspensions and exclusions are already captured in s 22(2)(c) by the language ‘subjecting the student to any other detriment’. The Commission applies this interpretation when it receives complaints about exclusionary practices that are not expulsion.

The justification provided by the Disability Royal Commission for the amendment is that the implementation of its recommendation would provide greater clarity, with a particular intention to ‘assist in ensuring that students with disability can re-engage with the education system following exclusionary discipline.’252

While the Commission remains concerned about the use of exclusionary discipline on students with disability, it is unclear whether this amendment would realistically achieve the specific outcome of re-engagement following exclusionary discipline. There is also a risk that introducing more specificity will narrow the scope of how these provisions are understood by duty holders and interpreted by the courts.

Furthermore, the Disability Royal Commission’s recommendation 7.2, when read in full, seeks to afford equal levels of protection from inappropriate exclusionary discipline in laws and policies across all jurisdictions.253 The Commission agrees that this is necessary and desirable, but questions whether an amendment to federal law will give effect to this, when definitions across state and territory education laws on the definitions of expulsions, exclusions, and suspensions are so varied.

Assistance animals

The Commission receives approximately 90 to 130 complaints per year about alleged discrimination in relation to the use of assistance animals. In the 2024-25 financial year, the Commission received the highest number of such complaints in the last five years. The complaints relate predominantly to the provision of goods and services (particularly airlines and ride shares/taxis) and access to premises (particularly accommodation, restaurants and government services).

Australian Human Rights Commission 70

Definitions

In 2009, following an inquiry by the Commission,254 significant amendments were made to the Disability Discrimination Act assistance animals provisions, including the introduction of section 9(2) prescribing a definition and standards for when an animal will be recognised as an assistance animal.255 The additions were aimed at providing greater certainty for both service providers and people with assistance animals. 256

Section 9(2)(b) allows for accreditation by an animal training organisation prescribed by regulations, but at present, no such regulations are in force. Section 9(2)(c) sets 2 minimum training requirements.

Section 9(2)(c) was introduced with the stated aim of ensuring that people with disability who live in jurisdictions that do not have accreditation schemes or who face other geographical barriers to obtaining accreditation are still afforded protection under the Disability Discrimination Act. 257 This protection remains legitimate and necessary.

The Issues Paper seeks views on ways to provide greater clarity on both accreditation and training requirements. Three options are proposed: issuing non legally binding guidance material, developing regulations, or amending the DDA. We hope that this Review will yield substantive feedback on these options that could feed into a cost benefit and regulatory impact analysis to assist in determining which of the 3 options will best reduce discrimination in this context. The Commission has in the past258 recommended the International Transport Forum’s Framework for Identifying and Measuring the Benefits of Accessibility. 259 The framework identifies 4 core domains in the analysis of ‘accessibility’: agency benefits (in this case, training and accreditation organisations), user benefits for both people with and without disability, non-user benefits (broader society) and capability value for people with disability (i.e. participation and health and wellbeing). The Framework could easily be applied to this context, even if it relates to accessibility in transport and noting that assistance animals have a role that goes beyond enabling accessibility for their users.

In early 2025, the Australian Department of Social Services consulted on draft National Principles for the regulation of Assistance Animals.260 There is a need for national consistency, beyond the existing provisions of the Disability Discrimination Act. The National Principles would provide some improvement in establishing nationally consistent guidance, but require further development. People with assistance animals should not face additional barriers in access or establishing training and accreditation requirements, regardless of the State they reside in.

Australian Human Rights Commission 71

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth)

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth)

The positive duty in the Sex Discrimination Act

The positive duty in section 47C of the Sex Discrimination Act requires duty holders to take ‘reasonable and proportionate measures’ to eliminate, as far as possible:

• discrimination on the ground of sex in a work context261
• sexual harassment in connection with work262
• sex-based harassment in connection with work263
• conduct creating a workplace environment that is hostile on the ground of sex264
• related acts of victimisation.265

The positive duty does not apply to all conduct that is unlawful under the Sex Discrimination Act and does not include all protected attributes (such as sexual orientation, gender identity and intersex status) or all the areas of public life covered by the Act. That is, the positive duty is limited to conduct described above, and only to conduct that occurs at work or in connection with work. Where it applies, it requires a proactive response from duty holders, creates a regulatory risk in cases of non-compliance, and aligns the approach in the Sex Discrimination Act with other workplace protections, including those set out in work health and safety (WHS) and employment laws.

As part of the implementation of this duty, the Commission was provided with new powers under Division 4A of Part II of the Australian Human Rights Commission Act to monitor and assess compliance with the positive duty.266 In December 2023, the Commission became a Commonwealth regulator with certain powers to monitor and enforce compliance with the positive duty in the Sex Discrimination Act. Under these powers the Commission can:

• commence an inquiry if there is reasonable suspicion of non-compliance and provide recommendations to achieve compliance267
• issue compliance notices specifying action that duty holders must take, or refrain from taking, to address any non-compliance268
• enter into enforceable undertakings with duty holders, where the duty holder agrees to do, or refrain from doing, certain things.269

If there is non-compliance, the Commission can apply to federal courts for an order to direct compliance with a compliance notice.270

Australian Human Rights Commission 72

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth)

Early implementation of the positive duty in the Sex Discrimination Act

Since the introduction of the positive duty in the Sex Discrimination Act in December 2022, duty holders have been required to treat the elimination of relevant unlawful conduct under the Sex Discrimination Act as a legal obligation and a regulatory risk.

There is emerging evidence that this appears to have been influential in focusing the attention and resources of senior leaders, such as Boards and Executive Leadership Teams, towards compliance and preventative action. For example, research conducted by the Australian Institute of Company Directors (AICD) and Australian Council of Superannuation Investors (ASCI) in 2023, indicates that:

Overall, board practices to prevent and respond to sexual harassment and other positive duty conduct have improved and there is increased momentum across Australian boardrooms to take action.271

Early observations from our regulatory work are that duty holders are proactively adopting measures to improve their compliance with the positive duty and the Commission’s Guidelines. The following statements are drawn from the Commission’s engagement with duty holders about their compliance with the positive duty:

[Duty holder] has conducted a full review of our processes… and have consulted with [law firm] in regards to meeting our compliance in this area… We are using the Workplace Sexual Harassment Prevention Plan and Record (attached) to plan out our implementation, education and continuous improvement in the area of Positive Duty Compliance.

‘The concerns raised in your correspondence… have prompted us to take immediate and coordinated action across both organisations…We have taken a number of actions designed to align our current practices with community expectations and legal obligation…’

This year, our senior leaders will receive additional enhanced training that focuses on their obligations to model appropriate behaviour, respond to concerns, and foster a culture of safety and respect.

Recent research conducted by the Australian HR Institute (AHRI) indicates that employers feel the Respect@Work agenda (including the positive duty in the Sex Discrimination Act) has led to positive changes in their organisation, in policy and practice. In the June Quarter 2025, AHRI surveyed 619 senior business decision makers, including human resources managers, from organisations with 2 or more employees.272 The research found that the ‘Respect@Work agenda’ (including the positive duty),273 was perceived to have the most positive impact on Australian workplaces274 out of all major workplace reform over the past 3 years, with a net positive rating of 66% and that 32% of organisations felt that

Australian Human Rights Commission 73

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth)

‘Respect@Work policies’ (positive duty) led directly to change in their organisation.

**Graph: Which, if any, of the above legislative changes has impacted the organisation in a positive or negative way?**275

[Bar chart showing percentages for Respect@Work (66), Flexible working (46), Fixed-term contracts (36), Casual employment (35), The right to disconnect (27), Prohibition of pay secrecy clauses (21), and Wage theft (5)]

Reporting from the Workplace Gender Equality Agency (WGEA) that covers the first 2 years from the introduction of the positive duty into the Sex Discrimination Act is optimistic. In its Progress Report 2022-2024, WGEA noted that between 1 June 2022 and 31 December 2024:

More employers consulted their employees and implemented policies to improve gender equality across each of the 6 GEIs. Employers deepened their policies and actions to address sexual harassment and discrimination in the light of positive duty requirements, and they increased their support to employees experiencing family and domestic violence.276

From 2026, WGEA will require employers with 500 or more employees to commit to achieving 3 gender equality targets from a ‘menu’.277 These gender equality targets align with and reinforce the Commission’s Guidelines.

Along with our regulatory work, the Commission has observed that duty holders are proactively engaging with our suite of guidance materials, as reflected in the following data between the FY24-25:

• Commission factsheets on the positive duty, including Causes and Risk Factors of Sex Discrimination, Sexual Harassment and Other Unlawful Behaviours, Effective Consultation and the Positive Duty, and Steps to Meet the Positive Duty were downloaded 4000+ times.
• The Commission webinar on the positive duty was viewed 1300+ times.
• The Commission’s key guidance document, the Guidelines for Complying with the Positive Duty, has been downloaded 4000+ times.

Australian Human Rights Commission 74

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth)

• 96% of respondents reported that the Commission’s E-learning series significantly improved their understanding of the positive duty.
• Three animations explaining different aspects of the positive duty were viewed 12,000+ times.
• Positive duty posters to be displayed in workplaces were downloaded 2200+ times.

In addition, the introduction of the positive duty in the Sex Discrimination Act has resulted in industry bodies and associations producing guidance and education materials that align with and reinforce the Commission’s resources. For example, with the Commission’s input, the AICD and the ACSI have produced a resource for company directors and the positive duty.278 Ai Group has also produced a suite of materials including an example Prevention and Response Plan.279

Strengthening the Commission’s regulatory powers

Compliance and enforcement activity by the Commission

The Commission has set up and operationalised our compliance and enforcement functions including triage and assessment, voluntary engagement, and inquiry activities.

A leading objective of the Commission is to help organisations improve their own practices through voluntary compliance measures. Since December 2023, the Commission has engaged with 46 duty holders to improve their compliance with the positive duty in the Sex Discrimination Act on a voluntary basis. In the 2024-2025 financial year, the Commission engaged with duty holders that were collectively responsible for approximately 126,500 employees.

The Commission started 4 formal inquiries in the 2024–25 financial year. These are all still active. These inquiries were into duty holders in the following industries:

1. Retail Trade
2. Accommodation and Food Services (Hospitality)
3. Finance
4. Transport, Postal & Warehousing industries.

Together these 4 duty holders are responsible for about 7,500 workers. Evidence indicates some workers have been exposed to serious unlawful conduct. The Commission has gathered information from a variety of sources to trigger our compliance powers, including information from workers, other regulators and media reports.

Australian Human Rights Commission 75

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth)

Once an inquiry is commenced, we use our powers to require information and documents from organisations in relation to their compliance with the positive duty in the Sex Discrimination Act. To make findings of non-compliance with the positive duty obligation, the Commission assesses evidence against the Standards and expectations in the Commission’s Positive Duty Guidelines.

At present, the Commission’s regulatory framework for enforcing compliance with the positive duty in the Sex Discrimination Act is not consistent with the more robust frameworks of comparable regulators. Key issues identified in the Commission’s early experience as a regulator are:

• limitations arising from an inability to seek a civil penalty order for a failure to comply with the positive duty
• limitations arising from an inability to require the production of information or documents until after an inquiry has been commenced
• relatively low penalties for non-compliance or ‘interference’ with the Commission’s administration and enforcement of the positive duty
• limitations on the Commission’s ability to share information, including the ability to confidently and sensibly share information with regulators that have overlapping jurisdictions.

Civil penalty orders

The ability to seek a civil penalty order through the courts is a powerful option in the toolbox of a regulator. In addition to the punitive and deterrent effect that civil penalty orders may have on duty holders, the possibility of taking duty holders to court can also encourage compliance with alternatives that sit at the lower levels of the regulatory pyramid, such as enforceable undertakings.

Both the WHS and Fair Work frameworks that regulate work related sexual harassment include the ability of the regulator to ‘move up’ the regulatory pyramid in appropriate cases and either seek civil penalty orders or refer matters for criminal prosecution. This means that negotiations around what enforceable undertakings might be considered appropriate in the circumstances occur within this context. While the Commission can currently enter into enforceable undertakings with duty holders around breaches, or suspected breaches, of the positive duty in the Sex Discrimination Act, it does not have the ability to ‘move up’ the regulatory pyramid in the same way.

In our Free & Equal 2021 Position Paper, the Commission’s proposed reforms to the discrimination regulatory regime reflect the concept of ‘responsive regulation’ and draw upon the idea of a regulatory pyramid.280 This envisages that different tools are required to achieve compliance with the law, depending on the willingness and capacity of individuals and organisations. It envisages capacity-building for circumstances where there is an inability to comply or a

Australian Human Rights Commission 76

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth)

minor breach of the law, and more coercive powers for circumstances where there is an unwillingness to comply, or a serious breach of the law.281

The idea of a regulatory pyramid was also used in the 2002 Australian Law Reform Commission’s (ALRC’s) report Principled Regulation. As characterised by the ALRC:

On this model, the ideal approach of the regulator is described as ‘the benign big gun’; that is, the regulator should have access to severe punishments but should rarely use them in practice…Ayres and Braithwaite’s model requires the regulator to behave as though the organisations being regulated wish to cooperate, and ensure that it is economically rational for them to cooperate. Where breaches occur, the initial response should be to persuade and educate them as to the appropriate behaviour. Such an approach promotes self-regulation and the wish to preserve reputation. However, once persuasion has failed, the issue of the use of penalties arises.282

The ALRC’s 2025 report Safe, Informed, Supported: Reforming justice responses to sexual violence283 recommends that the law be amended so that a person who breaches the positive duty in the Sex Discrimination Act may be ordered to pay a civil penalty.284 The ALRC noted that civil penalties may increase the incentive for duty holders to take measures to prevent sexual harassment in connection with work, and may deter duty holders who might otherwise breach the positive duty.285 The ALRC argued that civil penalties may place greater responsibility on duty holders to address WSH and on the state to enforce that responsibility, shifting the responsibility from individuals to bring legal action.286 The Commission agreed with the ALRC’s position in its recent report Speaking from Experience: What needs to change to address workplace sexual harassment (Speaking from Experience Report).287

The Regulatory Powers (Standard Provisions) Act

In 2014, the Australian Government enacted the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act) to provide a framework of standard regulatory powers exercised by agencies across the Commonwealth. The Regulatory Powers Act commenced on 1 October 2014 but only has effect where Commonwealth Acts are drafted or amended to trigger its provisions. As the Attorney-General’s Department explained:

Implementation of the Regulatory Powers Act supports the government’s regulatory reform agenda, as it simplifies and streamlines Commonwealth regulatory powers across the statute book.288

In 2023, section 35K of the Australian Human Rights Commission Act came into effect, triggering Part 6 of the Regulatory Powers Act. Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings

Australian Human Rights Commission 77

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth)

relating to compliance with provisions, in this case, the positive duty in section 47C of the Sex Discrimination Act.

The Regulatory Powers Act also creates a standardised framework for the use of civil penalties to enforce civil penalty provisions in federal legislation. This is what is used by the Office of the Australian Information Commissioner (OAIC) and the Privacy Act in the civil penalty scheme outlined above. If section 47C of the Sex Discrimination Act was amended to become a civil penalty provision, then an amendment triggering of Part 4 of the Regulatory Powers Act appears to be a straightforward and internally consistent way of effecting this change.

Power to require the production of information or documents

Where the Commission has reason to believe that a person is capable of giving information or producing documents relevant to a matter under inquiry, the Commission has the power to obtain the information or require the production of those documents by way of a written notice.289 However, the Commission is not able to require the production of information or documents, without having first commenced an inquiry under section 35B of the Commission Act.

This contrasts with the powers of other regulators, who are not so limited and may issue notices to produce information prior to commencing a formal inquiry. For example, the Model Work Health and Safety Act includes a power for the regulator to obtain information ‘that will assist the regulator to monitor or enforce compliance with the Act’.290 This flexibility allows these regulators to monitor and assess compliance effectively without formally commencing an inquiry and is a crucial tool in assessing whether a formal inquiry is necessary.

As the legislation currently stands, the Commission relies on the voluntary production of documents to inform assessments as to whether to commence an inquiry. Where duty holders do not provide this information voluntarily, the Commission may be required to commence an inquiry early or be unable to gather the information needed to form the requisite suspicion that non-compliance has occurred.

Penalties for non-compliance or ‘interference’ with the Commission’s administration and enforcement of the positive duty

The current penalties for non-compliance or ‘interference’ with our inquiry mechanisms relating to the positive duty are low, particularly when compared with penalties available under other Commonwealth regulatory schemes.

For example, under section 21 of the Australian Human Rights Commission Act (as applied by section 35D of the Act), a notice can be issued by the Commission to compel the production of specified information or documents from the duty holder, which may be necessary to assess compliance and make findings.

Australian Human Rights Commission 78

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth)

Currently, the penalty for non-compliance with a section 21 notice issued by the Commission is 10 penalty units for an individual ($3,300) and 50 penalty units for a body corporate ($16,500).291

By way of contrast, preliminary research suggests that penalties for non-compliance with similar ‘notices to produce’ in other regulatory schemes are significantly higher, as set out below:

• Comcare – individual: currently $14,000; body corporate: $70,000.292
• ACCC – individual: imprisonment for 2 years or a fine not exceeding 100 penalty units ($33,000); body corporate: 500 penalty units ($165,000).293
• OAIC – 60 penalty units ($19,800) or 300 penalty units ($99,000) for 2 or more breaches by a body corporate.294
• FWO - individual: 60 penalty units ($19,800); body corporate (small business) 300 penalty units ($99,000) and body corporate (not small business) 1,500 penalty units ($495,000).295

Given the relatively low penalties in the Australian Human Rights Commission Act, the Commission is concerned that the current penalty amounts may not adequately deter non-compliance or ‘interference’ with the Commission’s administration and enforcement of the positive duty. Some contributors to the Commission’s Speaking from Experience report repeated this concern, noting they had the sense that leaders did not take the new laws seriously.296 This is particularly the case when balanced against the potential cost to a duty holder if the Commission were to direct action that it must take, or refrain from taking, to achieve compliance, based on the information produced. Similarly, under section 26(1) of the Australian Human Rights Commission Act, offences relating to hindering, obstructing, or interfering with Commission staff who are carrying out investigation or inquiry functions under the positive duty is set at 10 penalty units ($3,300). This appears low considering the significant impact that such actions could have on the integrity of inquiries.

An increase in penalty units would better protect the integrity of the Commission’s regulatory role and reflect the seriousness of a duty holder’s obligations under the positive duty. It is also likely to increase public trust and confidence in the regulatory framework and the Commission’s standing as a regulator, by strengthening the view that compliance with the law is not optional and that appropriate penalties are available to respond to non-compliance.

Limitations on the Commission’s ability to share information

The Commission’s ability to share information is limited by the secrecy provision in section 49 of the Australian Human Rights Commission Act. This is a strict non-disclosure provision that applies to information acquired by Commission members and staff because of their office or employment. It prohibits the President, Commissioners and Commission staff from divulging information

Australian Human Rights Commission 79

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth)

relating to the ‘affairs of another person’ – understood as information that could identify one or more specific individuals and legal persons (such as companies) – except in limited circumstances. Criminal penalties apply: up to 12 months imprisonment or 50 penalty units ($16,500), or both.

In general terms, the secrecy provision effectively prevents the Commission from divulging information relating to the Commission’s positive duty functions including:

• sharing identifying information with other regulators who have similar powers or overlapping jurisdictions, such as the Fair Work Ombudsman or work, health and safety (WHS) regulators
• publishing a compliance notice issued to an organisation or identifying information about any compliance notices issued
• publishing the name of an organisation under consideration for, or subject to, the Commission’s compliance and enforcement activities, such as voluntary engagement or an inquiry.

The inability of the Commission to share information with regulators that have overlapping jurisdictions creates complexities and inefficiencies. We are limited in our ability to identify and minimise duplication and harmonise activities with other regulators to achieve better regulatory outcomes and reduce the regulatory burden on duty holders. Information sharing with other regulators can avoid duplication given the overlapping jurisdictions.

The information that we can share with the public about our compliance and enforcement activities is also more limited than other regulators. Informing the public about operational activities is an essential part of a regulator’s work. This is because it promotes compliance, can act as a deterrent, has an educative function, and ensures transparency and public confidence. Contributors to the Speaking from Experience report emphasised concerns about a lack of transparency in relation to workplace sexual harassment, and in particular the use of non-disclosure agreements to limit genuine accountability.297

Commonly permitted disclosures that are available to other regulators include when information is disclosed with a person’s consent, when information is already in the public domain, to lessen or reduce a risk to public health or safety, or to comment on investigations or regulatory activity.

An independent statutory review of the amendments made by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) must be undertaken between 12 December 2025 and 12 December 2026.298 As part of this review, consideration will be given to whether the legislative changes are operating effectively, and whether the Commission has the resources to carry out our functions relating to the positive duty in the Sex Discrimination Act.299

Australian Human Rights Commission 80

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth)

This presents an opportunity to examine the operation of the secrecy provision and the Commission’s information sharing powers, in the context of our statutory functions, enforcement powers, and the broader regulatory landscape.

The Australian Human Rights Commission Act should be amended to enable better information sharing with other regulators and the public. The scope of these amendments should be considered and informed by the independent review of the positive duty in the Sex Discrimination Act due to commence in 2026.

Enhancing regulatory coordination: The Commission’s collaborative approach to positive duty implementation

Recent submissions to the Economic Forum Roundtable from the Australian Retailers Association, and a coalition of 27 groups representing Australia’s small, medium and large businesses, university and the investment community, called for ‘harmonising and modernising regulation’, and for ‘reducing red tape through better regulation’.300 The Australian Retailers Association noted they supported embedding the principles of good regulatory design when new regulations are introduced stating that this should include:

ensuring alignment with existing state, federal, and international frameworks; assessing unintended economic consequences; and incorporating clear mechanisms for post-implementation review.301

The Commission is well attuned to the importance of increasing regulatory alignment and efficiency. Our approach to regulation is outlined in the Commission’s Compliance and Enforcement Policy which aligns with principles of regulatory best practice. The Commission uses a risk-based, intelligence-led and data-driven approach to compliance and enforcement of the positive duty in the Sex Discrimination Act, focusing our resources on activities and inquiries that will provide the greatest impact for meaningful cultural change. We are committed to using our resources strategically to provide the greatest benefit for the community. In discharging our regulatory role, the Commission is able to proactively initiate action to address relevant unlawful conduct, rather than relying on individuals to bring complaints. This eases the overall burden on individuals to bring complaints.

The Commission has built strategic partnerships and demonstrated regulatory best practice to ensure regulatory efficiency. For example, in September 2024, the Commission delivered the first National Regulator Roundtable, bringing together 32 representatives from 20 agencies across state and federal Work Health and Safety, Anti-Discrimination, Human Rights, Equal Opportunity, and Fair Work jurisdictions. The Regulator Roundtable strengthened coordination

Australian Human Rights Commission 81

Appendix A: Learnings from the implementation of the positive duty in the Sex Discrimination Act 1984 (Cth)

and communication between regulatory bodies. The 2025 event has been expanded to 2 days following the positive feedback from attendees.

The Commission and the Queensland Human Rights Commission built on this success by securing approval from the Australian Council of Human Rights Agencies (ACHRA) to establish a Positive Duty Working Group in October 2024. The Working Group held its first meeting in November 2024 and now meets quarterly. It enables ongoing collaboration between anti-discrimination, equal opportunity and human rights commissions across federal, state and territory levels.

These initiatives reflect the Commission’s commitment to the 3 principles of regulatory best practice outlined in the Regulator Performance Guide. The collaborative approach demonstrates continuous improvement through systematic capability building, risk-based decision-making that leverages collective knowledge whilst minimising burden, and transparent communication that reduces duplication across jurisdictions.

The Commission’s approach shows how effective regulation can be enhanced through strategic collaboration, creating more efficient outcomes for Australian workplaces whilst maintaining strong protections against discrimination.

Australian Human Rights Commission 82

Endnotes

Endnotes

1 Productivity Commission, Review of the Disability Discrimination Act 1992 (Final Report, No 30, 14 July 2004).

2 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 320 (entered into force 3 May 2008) (‘CRPD’).

3 See, Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings, 2003 (Catalogue No. 4430.0, 15 September 2004); Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings, 2018 (Catalogue No. 4430.0, 24 October 2019); Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings, 2022 (Catalogue No. 4430.0, 4 July 2024).

4 Australian Human Rights Commission, Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability (2016).

5 See Australian Human Rights Commission, Equality at Work [website], n.d. accessed 20 October 2025.

6 Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) (‘Free & Equal 2021 Position Paper’).

7 CRPD arts 5(1) & (2).

8 CRPD Preamble.

9 Human Rights Committee, General Comment No. 18: Non-discrimination, 37th sess, UN Doc CCPR/C/GC/18 (10 June 1989).

10 International Covenant on Civil and Political Rights opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’) arts 2(1) & 26; International Covenant on Economic, Social and Cultural Rights opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’) art 2.2; International Convention on the Elimination of All Forms of Racial Discrimination opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (‘ICERD’) arts 1, 2, 4, & 5; Convention on the Rights of the Child opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’) art 2; Convention on the Elimination of All Forms of Discrimination Against Women opened for signature for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) 2, 3, 4 & 15; CRPD arts 3, 4, 5 & 12.

11 CRPD art 5(1).

12 CRPD art 5(2).

13 CRPD art 2.

14 United Nations Committee on the Rights of Persons with Disabilities, General Comment 6 on equality and non-discrimination, UN Doc CRPD/C/GC/6 (26 April 2018) [24].

15 United Nations Committee on the Rights of Persons with Disabilities, General Comment 6 on equality and non-discrimination, UN Doc CRPD/C/GC/6 (26 April 2018) [24].

16 CRPD art 2.

Australian Human Rights Commission 83

Endnotes

17 United Nations Committee on the Rights of Persons with Disabilities, General Comment 6 on equality and non-discrimination, UN Doc CRPD/C/GC/6 (26 April 2018) para 24(b).

18 Human Rights Committee, General Comment No 18: Non-Discrimination, UN Doc CCPR/C/GC/18 (10 November 1989), 2 [8].

19 United Nations Committee on the Rights of Persons with Disabilities, General Comment 6 on equality and non-discrimination, UN Doc CRPD/C/GC/6 (26 April 2018) 11.

20 CRPD art 13(1).

21 CRPD art 13(2).

22 Arlene S. Kanter, The Development of Disability Rights under International Law (Routledge, 2015) 230.

23 Human Rights Council, Report on Equality and non-discrimination under article 5 of the Convention on the Rights of Persons with Disabilities, UN Doc A/HRC/34/26 (9 December 2016) para 35.

24 Acts Interpretation Act 1901 (Cth) s 15AB(2)(d).

25 Acts Interpretation Act 1901 (Cth) s 15AA.

26 Disability Discrimination Act 1992 (Cth) s 12(8).

27 Age Discrimination Act 2004 (Cth) s 3.

28 Sex Discrimination Act 1984 (Cth) s 3(a), sch 1

29 Racial Discrimination Act 1975 (Cth) sch 1.

30 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 29 September 2023) vol 4, Recommendation 4.34 (‘Disability Royal Commission Final Report’).

31 See, Office of the United Nations High Commissioner for Human Rights, Implementing the Rights of Persons with Disabilities – the Role of Independent Monitoring Frameworks: Practical Guide (Professional Training Series No 28, United Nations, 2023).

32 Australian Government, Implementation of the Convention on the Rights of Persons with Disabilities, Report to the UN Committee on the Rights of Persons with Disabilities, UN Doc CRPD/C/Aus/1 (7 June 2012). Australian Government, Combined second and third periodic reports submitted by Australia under article 25 of the Convention, due in 2018, Report to the UN Committee on the Rights of Persons with Disabilities, UN Doc CPRD/C/Aus/2-3 (5 February 2019).

33 Australian Human Rights Commission Act 1986 (Cth) s 10.

34 United Nations Committee on the Rights of Persons with Disabilities, Concluding observations on the combined second and third periodic reports of Australia, UN Doc CPRD/C/Aus/Co/2-3 (15 October 2019) [61].

35 Canadian Human Rights Act, R.S.C., 1985, c. H-6, s 28.1.

36 Australian Human Rights Commission, Free and Equal Final Report: Revitalising Australia’s Commitment to Human Rights (2023) (‘Free & Equal Final Report’).

37 Parliamentary Joint Committee on Human Rights, Parliament of Australia, Inquiry into Australia’s Human Rights Framework (Final Report, May 2024).

38 See Recommendations 4.1-4.21, Australian Government, Australian Government Response to the Disability Royal Commission (Final Report, July 2024) 31-40.

Australian Human Rights Commission 84

Endnotes

39 Sex Discrimination Act 1984 (Cth) ss 47C.

40 Free & Equal Final Report 76.

41 Attorney-General’s Department, (April 2010), Australia’s Human Rights Framework, 9.

42 Free & Equal 2021 Position Paper 39, citing Australian Chamber of Commerce and Industry, Submission 153, Free & Equal Inquiry, 1.

43 Australian Government, Department of Finance, Regulator Performance: Principle 1: Continuous improvement and building trust, (30 June 2023) <https://www.finance.gov.au/government/managing-commonwealth-resources/regulator-performance-rmg-128/principle-1-continuous-improvement-and-building-trust>

44 Australian Institute of Company Directors, How excessive regulation is affecting Australian innovation and productivity, (1 May 2025) <https://www.aicd.com.au/leadership/types/management/how-excessive-regulation-is-affecting-australian-innovation-and-productivity.html>

45 Australian Institute of Company Directors, How excessive regulation is affecting Australian innovation and productivity, (1 May 2025) https://www.aicd.com.au/leadership/types/management/how-excessive-regulation-is-affecting-australian-innovation-and-productivity.html

46 Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (2020), 19.

47 ICCPR art 2.

48 Committee on the Rights of Persons with Disabilities, Concluding observations on the combined second and third periodic reports of Australia, 22nd sess, UN Doc CRPD/C/AUS/CO/2-3 (15 October 2019) [9].

49 Ibid [10(a)].

50 Australian Human Rights Commission, Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability (2016), 338.

51 Free & Equal 2021 Position Paper 300–301, 303, 309, 339, 345; Free & Equal Final Report 88.

52 Disability Discrimination Act 1992 (Cth) s 5(1).

53 Age Discrimination Act 2004 (Cth) s 14(a), Sex Discrimination Act 1984 (Cth) ss 5(1), 5A(1), 5B(1), 5C(1), 6(1), 7(1), 7AA(1), 7A(1).

54 See the Australian Government Attorney-General’s Department, Consolidation of Commonwealth Anti-Discrimination Laws: Discussion Paper (September 2011), 27, cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 281.

55 Australian Council of Trade Unions, Submission 159, Free & Equal Inquiry, 17 cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 282.

56 Free & Equal 2021 Position Paper 282.

57 Free & Equal 2021 Position Paper 282.

58 Free & Equal 2021 Position Paper 282.

59 Free & Equal Final Report 88.

Australian Human Rights Commission 85

Endnotes

60 Dominique Allen, ‘An Evaluation of the Mechanisms designed to promote substantive equality in the Equal Opportunity Act 2010 (Vic)’ (2020) 44(2) Melbourne University Law Review 459, 484 cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) 283.

61 Free & Equal 2021 Position Paper 283.

62 Australian Government Attorney-General’s Department, Consolidation of Commonwealth Anti-Discrimination Laws: Discussion Paper (September 2011) [30], citing Productivity Commission, Review of the Disability Discrimination Act (Report No 30, 30 April 2004) 307.

63 Fair Work Act 2009 (Cth) s 351.

64 Disability Discrimination Act (Cth) s 5.

65 Disability Discrimination Act (Cth) s 10.

66 See Disability Discrimination Act 1992 (Cth) s 10 & Commonwealth, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, September 2023) Vol 4, 301.

67 Commonwealth, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 4, 301.

68 Law Council of Australia, Submission 156, Free & Equal Inquiry, [133]–[134]. Also: Victoria Legal Aid, Submission 131, Free & Equal Inquiry; Legal Aid NSW, Submission 112, Free & Equal Inquiry; Maurice Blackburn Lawyers, Submission 132, Free & Equal Inquiry cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) 208.

69 Australian Government Attorney-General’s Department, Consolidation of Commonwealth Discrimination Laws: Human Rights and Anti-Discrimination Bill 2012, Exposure Draft Explanatory Notes (November 2012) [463] cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 206.

70 Fair Work Act 2009 (Cth) s 361.

71 Disability Royal Commission Final Report Vol 4, 302.

72 Free & Equal 2021 Position Paper 205 & 206.

73 Free & Equal 2021 Position Paper 206.

74 Senate Legal and Constitutional Affairs Legislation Committee, Human Rights and Anti-Discrimination Bill 2012, February 2013, Report, [7.86], 98.

75 Disability Discrimination Act 1992 (Cth) s 6.

76 Racial Discrimination Act 1975 (Cth) s 9(1A)(b), Anti-Discrimination Act 1977 (NSW) s 49B(1)(b), Anti-Discrimination Act 1991 (Qld) s 11(1), Equal Opportunity Act 1984 (SA) s 66(b), Equal Opportunity Act 1984 (WA) s 66A(3).

77 Australian Government Attorney-General’s Department, Consolidation of Commonwealth Anti-Discrimination Laws: Discussion Paper (September 2011) 38.

78 Law Council of Australia, Submission 156, Free & Equal Inquiry, 66 cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 298.

Australian Human Rights Commission 86

Endnotes

79 Racial Discrimination Act 1975 (Cth) ss 9(1A)(a)–(c).

80 Disability Discrimination Act 1992 (Cth) s 6(3).

81 Disability Discrimination Act 1992 (Cth) ss 11, 21B and 29A.

82 Secretary, Department of Foreign Affairs & Trade v Styles (1989) 23 FCR 251, pp 263–64 cited in Commonwealth, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 4, 304.

83 Waters v Public Transport Corporation (1991) 173 CLR 349, pp 378 & 395 cited in Disability Royal Commission Final Report Vol 4, 304.

84 Ibid.

85 Ibid.

86 Free & Equal 2021 Position Paper 296.

87 See Drummond v Commissioners for H Revenue and Customs [2022] ET/4109218/2021 [74] – [79], [83] – [89]. Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 297.

88 Sandra Fredman, Discrimination Law (OUP, 2nd ed, 2011) 190, cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 297.

89 Ibid.

90 Equal Opportunity Act 2010 (Vic) s 9(3), Sex Discrimination Act 1984 (Cth) s 7B(2).

91 Disability Discrimination Act 1992 (Cth) s 4.

92 Disability Discrimination Act 1992 (Cth) ss 4 – 6.

93 United Nations Committee on the Rights of Persons with Disabilities, General Comment 6 on equality and non-discrimination, UN Doc CRPD/C/GC/6 (26 April 2018) [18(c)].

94 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 29 September 2023) vol 4, Recommendation 4.26.

95 Discrimination Act 1991 (ACT) s 74, Equal Opportunity Act 2010 (Vic) ss 20, 22A, 33, 40, 45.

96 Dominique Allen, An Evaluation of the Mechanisms designed to promote substantive equality in the Equal Opportunity Act 2010 (Vic) (2020) 44(2) Melbourne University Law Review 459, 488, cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 292.

97 Disability Discrimination Legal Service, Submission 73, Free & Equal Inquiry, 17, cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 290.

98 Alice Taylor, ‘The Conflicting Purposes of Australian Anti-Discrimination Law’ (2019) 42(1) University of New South Wales Law Journal 188, 202, cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 290.

99 Free & Equal 2021 Position Paper 290.

Australian Human Rights Commission 87

Endnotes

100 See EIX20 v State of Western Australia (No 2) [2025] FCA 28 at [77]- [78], Ponraj v Wycombe Services Pty Ltd [2023] FCA 118 at [116], Varasdi v State of Victoria [2018] FCA 1655 at [32]-[33], Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436 at [282].

101 United Nations Committee on the Rights of Persons with Disabilities, General Comment 6 on equality and non-discrimination, UN Doc CRPD/C/GC/6 (26 April 2018) 7.

102 Disability Discrimination Act 1992 (Cth), s 4.

103 Disability Royal Commission Final Report Vol 4, 307.

104 CRPD art 16(1).

105 Report of the Working Group to the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, UN Enable, Annex I: Draft Convention, Draft art 12 <https://www.un.org/esa/socdev/enable/rights/ahcwgreporta12.htm>

106 CRPD art 8(1)(b).

107 United Nations Committee on the Rights of Persons with Disabilities, General Comment 6 on equality and non-discrimination, UN Doc CRPD/C/GC/6 (26 April 2018) 18.

108 Disability Discrimination Act 1992 (Cth), s 7 and 8 extend the operation of the Act to associates, carers, assistants, assistance animals and disability aids.

109 Disability Discrimination Act 1992 (Cth), s 35.

110 Disability Discrimination Act 1992 (Cth), s 37.

111 Disability Discrimination Act 1992 (Cth), s 39.

112 Disability Royal Commission Final Report Vol 4, 319.

113 Berry v State of South Australia [2017] FCA 702, [11].

114 Orlowski v Sunrise Co-operative Housing Inc [2009] FMCA 31 [21].

115 Sex Discrimination Act 1984 (Cth) ss 28A and 28M.

116 Sex Discrimination Act 1984 (Cth) ss 28A and 28M; Racial Discrimination Act 1975 (Cth) s 18C; Disability Standards for Education 2005 (Cth) s 8.1.

117 Disability Royal Commission Final Report Vol 4, 324, Recommendation 4.29.

118 Sex Discrimination Act 1984 (Cth) ss 28A and 28M; Racial Discrimination Act 1975 (Cth) s 18C; Disability Standards for Education 2005 (Cth) s 8.1.

119 Jones v Scully (2002) 120 FCR 243 at [102]-[109] per Hely J; Clarke v Nationwide News Pty Ltd (t/as Sunday Times) (2012) 201 FCR 389 at [65]-[71] per Barker J.

120 Jones v Scully (2002) 120 FCR 243 at [99] per Hely J; Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475 at [21] per Gyles J.

121 Eatock v Bolt (2011) 197 FCR 261 at [253] per Bromberg J; Clarke v Nationwide News Pty Ltd (t/as Sunday Times) (2012) 201 FCR 389.

Australian Human Rights Commission 88

Endnotes

122 Jones v Toben [2002] FCA 1150 at [73]-[75] per Branson J; Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475; Clarke v Nationwide News Pty Ltd trading as Sunday Times (2012) 201 FCR 389; Faruqi v Hanson [2024] FCA 1264.

123 Clarke v Nationwide News Pty Ltd trading as The Sunday Times (2012) 201 FCR 389, [352].

124 ICCPR art 19.

125 ICCPR art 19(2). Freedom of expression is also protected under several other international instruments, including: ICERD art 5; CRC art 13; CRPD art 21.

126 Human Rights Committee, General Comment No 34: Article 19 – Freedoms of Opinion and Expression, UN Doc CCPR/C/GC/34 (12 September 2011) para 11.

127 Human Rights Committee, General Comment No 34: Article 19 – Freedoms of Opinion and Expression, UN Doc CCPR/C/GC/34 (12 September 2011) para 21.

128 ICCPR art 19(3).

129 Parliamentary Joint Committee on Human Rights, Parliament of Australia, Freedom of speech in Australia: Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth), (Inquiry report, 28 February 2017).

130 Australian Government Attorney-General’s Department, Disability Discrimination Act 1992 Review (Issues Paper, 1 August 2025) 19.

131 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 4, 32, recommendation 4.30.

132 race, religion, nationality, national or ethnic origin or political opinion.

133 Criminal Code Act 1995 (Cth) s 80.2A, 80.2B, 80.2BA, 80.2BB, 80.2BC, 80.2BD, 80.2H, 80.2HA, 80.2K.

134 Criminal Code 2022 (ACT), s 750; Justice Legislation Amendment (Anti-vilification and Social Cohesion) Act 2025 (Vic).

135 Crimes Act 1900 (NSW) s 93Z; Criminal Code Act 1899 (Qld) s 52B; Criminal Code (WA) ss 77, 78.

136 Disability Discrimination Act (Cth) ss 35, 37, 39.

137 Criminal Code 2022 (ACT) s 750; Justice Legislation Amendment (Anti-vilification and Social Cohesion) Act 2025 (Vic).

138 Attorney-General and Minister for Justice and Minister for Integrity, ‘MEDIA STATEMENT: Crisafulli Government to consult on anti-discrimination laws’ (14 March 2025) available at: https://www.qhrc.qld.gov.au/about-us/news/pause-to-the-anti-discrimination-act-reforms.

139 Anti-discrimination Act 1977 (NSW) ss 20C (racial vilification), 38S (transgender vilification), 49ZE (religious vilification), 49ZXB (HIV/AIDS vilification); Civil Liability Act 1936 (SA) s 73 (racial victimisation).

140 Queensland’s government has paused amendments to the Anti-Discrimination Act 1991 (Qld) that were due to commence on 1 July 2025.

141 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 4, 326.

142 Disability Discrimination Act 1992 (Cth) s 21B.

Australian Human Rights Commission 89

Endnotes

143 Disability Discrimination Act 1992 (Cth) s 11.

144 Disability Discrimination Act 1992 (Cth) s 11.

145 Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) 12 [57], cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 294.

146 Beth Gaze and Belinda Smith, Equality and Discrimination Law in Australia: An Introduction (Cambridge University Press, 2017) 160–161, [67], cited in Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 295.

147 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 4, 337.

148 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 4, 337.

149 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 4, 337.

150 Committee on the Rights of Persons with Disabilities, General Comment 6 on equality and non-discrimination, UN Doc CRPD/C/GC/6 (26 April 2018) para 23(b).

151 Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) 12 [57], cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 294.

152 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 4, 337.

153 Fair Work Act 2009 (Cth) s 65A(1), (6).

154 Disability Discrimination Act 1992 (Cth) s 21A.

155 Age Discrimination Act 2004 (Cth) ss 18(4), 19(3)-(4), 20(3)-(4), 21(4)-(5), 22(2)-(3), 24(2)-(3).

156 Fair Work Act 2009 (Cth) s 351.

157 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 7B, 389.

158 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 7B, 390 - 391.

159 Australian Human Rights Commission, Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability (2016), 176.

160 Disability Discrimination Act 1992 (Cth) s 21A(2).

161 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 7B, 438.

162 Kate Eastman SC, Elizabeth Bennett SC & Cathy Dowsett Submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Outline of Submissions of Counsel Assisting following Public Hearing 19 (7 January 2022) 118, [415].

163 Ibid [52] – [58]. Disability Royal Commission Final Report Vol 7B, pp 382 – 385.

Australian Human Rights Commission 90

Endnotes

164 Ibid 118.

165 Centre for Social Impact, Evaluation of the Australian Human Rights Commission ‘IncludeAbility’ Project 2020-2023: Key Findings (September 2023) 5.

166 Ibid 53.

167 Ibid 5.

168 Productivity Commission, Review of the Disability Discrimination Act 1992 (Final Report, No 30, 14 July 2004) 220 - 221.

169 Free & Equal 2021 Position Paper 77.

170 Beth Gaze and Belinda Smith, Equality and Discrimination Law in Australia: An Introduction (Cambridge University Press, 2017) 266,) cited in Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (Position Paper, December 2021) p 61.

171 Free & Equal 2021 Position Paper 28.

172 Free & Equal 2021 Position Paper 77.

173 See, Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings, 2003 (Catalogue No. 4430.0, 15 September 2004) https://www.abs.gov.au/AUSSTATS/abs%40.nsf/Lookup/4430.0Main%2BFeatures12003%3FOpenDocument; Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings, 2018 (Catalogue No. 4430.0, 24 October 2019) <https://www.abs.gov.au/statistics/health/disability/disability-ageing-and-carers-australia-summary-findings/2018>, which shows that the labour force participation rate for people with disability in 2003 was 53%, compared to 53.4% in 2018. The 2022 Australian Bureau of Statistics released information in 2022, the labour force participation rate for people with disability was 60.5% (https://www.abs.gov.au/statistics/health/disability/disability-ageing-and-carers-australia-summary-findings/latest-release).

174 Disability Royal Commission Final Report Vol 4, 92, Vol 3 and Vol 7.

175 Disability Royal Commission Final Report Vol 3.

176 James Vincent, Hugh Miller, Kirsten Armstrong, Grant Lian, David Qi, Nansi Richards, Taylor Fry, Dennis McCarthy, Sarina Lacey & Tomas Berry, Centre for International Economics, The economic cost of violence, abuse, neglect and exploitation for people with disability, Report prepared for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, February 2023, 73.

177 Ibid, 73.

178 Free & Equal 2021 Position Paper 78.

179 Productivity Commission, Review of the Disability Discrimination Act 1992 (Report No 30, 2004) Overview, XXXVI.

180 Productivity Commission, Review of the Disability Discrimination Act 1992 (Report No 30, 2004) 134.

181 Dr Andrew Leigh MP, Opinion piece: A productivity agenda that puts people first, Australian Ministers Treasury portfolio [Article] 25 July 2025, accessed September 2025, <https://ministers.treasury.gov.au/ministers/andrew-leigh-2025/articles/opinion-piece-productivity-

Australian Human Rights Commission 91

Endnotes

agenda-puts-people-first>. ACT Human Rights Commission, ACT Discrimination Act Positive Duty, [website], n.d., accessed 9 September 2025.

182 Australian Government Attorney-General’s Department, Disability Discrimination Act 1992 Review (Issues Paper, 1 August 2025) 41.

183 Disability Royal Commission Final Report Executive Summary, 53, 62.

184 Australian Government Attorney-General’s Department, Disability Discrimination Act 1992 Review (Issues Paper, 1 August 2025) 41.

185 Reforms to the Anti-Discrimination Act 1991 (Qld) were due to commence on 1 July 2025, however on 14 March 2025, the Queensland government announced that the amendments to the Anti-Discrimination Act 1991 (Qld) will be paused to allow for further consultation by the Queensland Government. See: Queensland Government Attorney General and Minister for Justice and Minister for Integrity, Crisafulli Government to consult on anti-discrimination laws [media release] 14 March 2025, accessed 30 September 2025. The Law Reform Commission of Western Australia provided its final report on proposed amendments to the Equal Opportunity Act 1984 (WA) to the Western Australian government in May 2022. The Final Report was tabled in Western Australian parliament on 16 August 2022, but as at the writing of this submission, there have been no further updates on the proposed amendments at this time. See: Government of Western Australia, Project 111 - Review of the Equal Opportunity Act 1984, [Website], 30 April 2024, accessed on 30 September 2025.

186 The following are not considered to be a ‘person conducting a business or undertaking’: an individual engaged solely as a worker (such as an employee) or officer (such as an executive manager), where they are acting in that capacity alone; volunteer associations, unless they (or members on behalf of the association) employ one or more people; elected members of a local authority (who are acting in that capacity); strata title companies (bodies corporate) that are responsible for common areas used only for residential purposes, unless the strata company engages one or more workers as an employee.

187 ACT Human Rights Commission, ACT Discrimination Act Positive Duty, [website], n.d., accessed 9 September 2025.

188 ACT Human Rights Commission, ACT Discrimination Act Positive Duty, [website], n.d., accessed 9 September 2025.

189 Free & Equal 2021 Position Paper 333.

190 Department of Finance (Cth), Regulatory Policy, Practice & Performance Framework (August 2024), 7. https://www.regulatoryreform.gov.au/sites/default/files/Regulatory-Policy-Practice-and-Performance-Framework.pdf

191 Sex Discrimination Act 1984 (Cth) s 3.

192 Free & Equal 2021 Position Paper 39.

193 Australian Law Reform Commission, ‘Safe, Informed, Supported: Reforming justice responses to sexual violence’ January 2025), 465 <https://www.alrc.gov.au/wp-content/uploads/2025/02/JRSV-Final-Report-Book-for-Web-final-20250211.pdf#page=470&zoom=100,108,219>.

194 Australian Human Rights Commission, Speaking from Experience: What needs to change to address workplace sexual harassment (June 2025), 68, 71.

195 Free & Equal 2021 Position Paper 79.

Australian Human Rights Commission 92

Endnotes

196 See: Department of Home Affairs, Review into Migration Health Requirement and Australia’s Visa Significant Cost Threshold (Report, April 2024) available at https://www.homeaffairs.gov.au/reports-and-pubs/PDFs/migration-health-requirement-review-australias-visa-sct.pdf.

197 See https://ministers.treasury.gov.au/ministers/daniel-mulino-2025/media-releases/draft-legislation-banning-use-adverse-genetic-testing.

198 Australian Human Rights Commission, Submission to Department of Home Affairs, Review of the Migration Health Requirement Significant Cost Threshold (24 November 2023); Australian Human Rights Commission, Submission to the Australian Treasury, Use of genetic testing results in life insurance underwriting (16 February 2024).

199 Disability Discrimination Act 1992 (Cth) s 55.

200 Disability Discrimination Act 1992 (Cth) s 55(3).

201 Free & Equal 2021 Position Paper 218.

202 Human Rights and Anti-Discrimination Bill 2012 (Cth), clause 83, a copy of the exposure draft of the bill can be found here: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2010-13/antidiscrimination2012/info/~/media/wopapub/senate/committee/legcon_ctte/completed_inquiries/2010-13/anti_discrimination_2012/info/exposure_draft.ashx

203 Free & Equal 2021 Position Paper 272.

204 Free & Equal 2021 Position Paper 119.

205 Disability Discrimination Act 1992 (Cth) s 45(1)(a).

206 Disability Discrimination Act 1992 (Cth) s 45(1)(b) and (c).

207 Disability Discrimination Act 1992 (Cth) s 45.

208 Age Discrimination Act 2004 (Cth) s 33(a).

209 Racial Discrimination Act 1975 (Cth) s 8.

210 Sex Discrimination Act 1984, s 7D(1).

211 Free & Equal 2021 Position Paper 129.

212 Disability Discrimination Act 1992 (Cth) ss 60 - 63.

213 Disability Discrimination Act 1992 (Cth) s 67.

214 Disability Discrimination Act 1992 (Cth) s 64.

215 Disability Discrimination Act 1992 (Cth) s 61.

216 Disability Discrimination Act 1992 (Cth) s 11(1)(e).

217 Australian Human Rights Commission, Register of Disability Discrimination Act Action Plans, (Web Page) <https://humanrights.gov.au/our-work/disability-rights/register-disability-discrimination-act-action-plans>

218 Free & Equal 2021 Position Paper 121.

Australian Human Rights Commission 93

Endnotes

219 Australian Human Rights Commission, Disability Action Plan Guide (2021) https://humanrights.gov.au/our-work/disability-rights/publications/disability-action-plan-guide-2021 [website], n.d., accessed 27 October 2025.

220 Free & Equal 2021 Position Paper 141.

221 Disability Discrimination Act 1992 (Cth) s 32.

222 Disability Discrimination Act 1992 (Cth) s 34.

223 Free & Equal 2021 Position Paper 134.

224 Disability Discrimination Act 1992 (Cth) s 67(1)(d) - (1)(e).

225 Australian Human Rights Commission Act 1986 (Cth), ss 35L, 35Q.

226 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 7A, 246.

227 Australian Government, Australian Government Response to the Disability Royal Commission (Final Report, July 2024) 120.

228 Australian Building Codes Board, National Construction Code Volume 1 (2022), 52.

229 Australian Government Treasury, Premises Standards Review 2021 – Opportunities for action, [Website], 2021, accessed September 2025.

230 The policy functions related to the administration of the Premises Standards within the federal Government were transferred to Treasury in May 2025, by way of administrative order. Department of the Premier and Cabinet, Administrative Arrangements Order (13 May 2025) 37.

231 Australian Government Treasury, Premises Standards Review 2021 – Opportunities for action, [Website], 2021, accessed September 2025.

232 See: Finding 3 in Department of Infrastructure, Transport, Regional Development, Communications, Third Review of the Disability Standards for Accessible Public Transport 2002 (Transport Standards), (Final Report, 2 December 2021) pp 12, 93-94. Recommendation 2 in Department of Infrastructure and Regional Development, Review of the Disability Standards for Accessible Public Transport 2002, (Final Report, July 2015) pp 12, 130 – 132. Department of Infrastructure, Transport, Regional Development, Communications, Sports and the Arts, Reform of the Disability Standards for Accessible Public Transport 2002 – Summary of decision, (Summary paper, 20 March 2024) 5.

233 See: Commonwealth Department of Social Services, Data Improvement Plan 2024 Australia’s Disability Strategy 2021 – 2031: Data Improvement Plan 2024 (Report 2024) 11.

234 See: The Allen Consulting Group, Review of the Disability Standards for Accessible Public Transport (Final Report to the Commonwealth Minister for Infrastructure, Transport, Regional Development and Local Government and the Attorney General (Cth), October 2009); Commonwealth Department of Infrastructure and Regional Development, Review of the Disability Standards for Accessible Public Transport 2002 (Final Report, July 2015); Commonwealth Department of Infrastructure, Transport, Regional Development and Communications, Third Review of the Disability Standards for Accessible Public Transport 2002 (Transport Standards) (Report, November 2021).

235 Department of Infrastructure, Transport, Regional Development, Communications and the Arts, Aviation White Paper: Towards 2050 (August 2024), p 61.

Australian Human Rights Commission 94

Endnotes

236 Disability Standards for Education 2005 (Cth) s 11.1, Disability Standards for Accessible Public Transport 2002 (Cth) s 34.1, Disability (Access to Premises — Buildings) Standards 2010 (Cth) s 6.1.

237 Free & Equal 2021 Position Paper, 166, 335.

238 Department of Infrastructure, Transport, Regional Development, Communications and the Arts, Aviation White Paper: Towards 2050 (August 2024), 59 – 63.

239 Free & Equal 2021 Position Paper, 142.

240 Australian Human Rights Commission, Human Rights and Technology (Final Report, 2021).

241 Australian Human Rights Commission, Submission to Department of Home Affairs, Review of the Migration Health Requirement Significant Cost Threshold (24 November 2023) 36.

242 CRPD art 1.

243 Rosemary Kayess & Therese Sands (2020). Convention on the Rights of Persons with Disabilities: Shining a light on Social Transformation. Sydney: UNSW Social Policy Research Centre, 32.

244 Disability Discrimination Act 1992 (Cth) s 4.

245 See Americans with Disabilities Act 1990, 42 USC § 12101.

246 See Peter Blanck On the Importance of the Americans With Disabilities Act at 30’ (2021) Journal of Disability Policy Studies, 1 – 23, 5.

247 Disability Royal Commission Final Report Vol 7A, 166.

248 Committee on the Rights of Persons with Disabilities, Concluding Observations on the combined second and third period reports of Australia, UN Doc C/AUS/CO/2-3 (15 October 2019) [45-46].

249 Disability Royal Commission Final Report Vol 7A, 166.

250 Disability Discrimination Act 1992 (Cth) s 22(2).

251 Age Discrimination Act 2004 (Cth) s 26(2)(b), Sex Discrimination Act 1984 (Cth) s 21(2)(b).

252 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 7A, 170.

253 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, (Final Report, 2023) Vol 7A, 168.

254 Human Rights and Equal Opportunity Commission (now the Australian Human Rights Commission), Report Following Consultations on Section 9(1)(f) of the Disability Discrimination Act 1992 Dealing with Assistance Animals Other than Guide Dogs and Hearing Dogs (Report, 18 November 2003).

255 Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth).

256 Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) 50.

257 Ibid.

258 Australian Human Rights Commission, Submission to the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, Review of the Disability Standards for Accessible Public Transport 2002 (11 July 2023).

Australian Human Rights Commission 95

Endnotes

259 See Daphne Federing and David Lewis, Towards a Framework for Identifying and Measuring the Benefits of Accessibility (Discussion Paper No 2017-03, International Transport Forum, February 2017).

260 Department of Social Services, National Principles for the regulation of Assistance Animals: Consultation Paper (2025) available at https://engage.dss.gov.au/wp-content/uploads/2025/03/assistance-animal-principles-consultation-paper.pdf

261 Sex Discrimination Act 1984 (Cth) ss 47C(1), 47C(2)(a)(i)-(iv).

262 Sex Discrimination Act 1984 (Cth) ss 47C(1), 47C(2)(b).

263 Sex Discrimination Act 1984 (Cth) ss 47C(1), 47C(2)(b).

264 Sex Discrimination Act 1984 (Cth) ss 47C(1), 47C(2)(c).

265 Sex Discrimination Act 1984 (Cth) ss 47C(1), 47C(2)(d).

266 Australian Human Rights Commission Act 1986 (Cth) ss 35A - 35K.

267 Australian Human Rights Commission Act 1986 (Cth) s 35B.

268 Australian Human Rights Commission Act 1986 (Cth) s 35F.

269 Australian Human Rights Commission Act 1986 (Cth) s 35K.

270 Australian Human Rights Commission Act 1986 (Cth) s 35J

271 Australian Institute of Company Directors, Australian Council of Superannuation Investors, Australian Human Rights Commission, Positive Duty: preventing and responding to workplace sexual harassment: Insights from Australian directors (Report, 2023) 5.

272 The Australian HR Institute, Quarterly Australian work Outlook: a forward view of the Australian Labor Market, June 2025, p 40.

273 The summary of the key legislative changes discussed in the report, demonstrate that ‘Respect@Work’ is a reference to the positive duty, and expanded definitions under the Commission Act.

274 The Australian Human Rights Institute, Quarterly Australian work Outlook: a forward view of the Australian Labor Market, June 2025, pp 20-2.

275 Australian HR Institute (2025) Quarterly Australian Work Outlook - June Quarter 2025. Melbourne Australia: The Australian HR Institute (AHRI).

276 Workplace Gender Equality Agency, Progress Report 2022-24 (2024) p 3 <https://apo.org.au/sites/default/files/resource-files/2025-08/apo-nid331993.pdf>.

277 Workplace Gender Equality (Gender Equality Targets) Instrument 2025.

278 Australian Institute of Company Directors, Positive Duty to prevent workplace sexual harassment: A director’s guide, 2023, accessed 9 September 2025.

279 Ai Group, Example Prevention and Response Plan for the Positive Duty under the Sex Discrimination Act 1984, [website], 2025, accessed 9 September 2025.

280 Free & Equal 2021 Position Paper 96-101, 158-159. See also Arie Freiberg, The Tools of Regulation (Federation Press, 2010) 97 & John Braithwaite, ‘Rewards and Regulation’ (2002) 29 Journal of Law and Society 12, 20.

281 Free & Equal 2021 Position Paper 93, 96-101.

Australian Human Rights Commission 96

Endnotes

282 Australian Law Reform Commission, Principled Regulation, (2003) 112.

283 Australian Law Reform Commission, Safe, Informed, Supported: Reforming justice responses to sexual violence (January 2025), 465-467.

284 Ibid 465.

285 Ibid 467.

286 Ibid 467.

287 Australian Human Rights Commission, Speaking from Experience: What needs to change to address workplace sexual harassment, June 2025, 68, 71.

288 See https://www.ag.gov.au/legal-system/administrative-law/regulatory-powers.

289 Australian Human Rights Commission Act 1986 (Cth) s 21 as applied by s 35D.

290 See Model Work Health and Safety Act, s 155 and Occupational Health and Safety Act 2004 (Vic) ss 9-11.

291 On 7 November 2024, the value of a criminal penalty unit increased from $313 to $330: section 4AA of the Crimes Act 1914 (Cth).

292 Work Health and Safety Act 2011 (Cth) ss 155, Schedule 4.

293 Competition and Consumer Act 2010 (Cth) s 155(6A), Crimes Act 1914 (Cth) s 4B(3).

294 Privacy Act 1988 (Cth) ss 44, 66(1), 66(1AA).

295 Fair Work Act 2009 (Cth) s 712, 539, 546(2), 546(2AA).

296 Australian Human Rights Commission, Speaking from Experience: What needs to change to address workplace sexual harassment, June 2025, p 66.

297 Australian Human Rights Commission, Speaking from Experience: What needs to change to address workplace sexual harassment, June 2025, p 60-61

298 See section 4 of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth).

299 Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth), s 4(2).

300 Australian Retailers Association, ARA/NRA Submission, Economic Reform Roundtable, [submission], July 2025, Accessed 9 September 2025; Business Council of Australia, Joint Group of Industry Associations Submission to the Economic Reform Roundtable, [submission], 25 July 2025, Accessed 9 September 2025.

301 Australian Retailers Association, ARA/NRA Submission, Economic Reform Roundtable, [submission], July 2025, Accessed 9 September 2025, p 4.

Australian Human Rights Commission 97