Consultation – Disability Discrimination Act
Review Issues Paper

Australian Government – Attorney-General’s
Submission

14 November 2025

Introduction

1. The Australian Industry Group welcomes the opportunity to provide feedback in response to the Disability Discrimination Act 1992 (DD Act) Issues Paper (Issues Paper).

2. The Australian Industry Group is a national employer organisation that represents traditional, innovative and emerging industry sectors. We have been acting on behalf of businesses across Australia for 150 years. We are a Peak Council and operate an incorporated legal practice, Ai Group workplace lawyers. Ai Group and partner organisations represent the interests of more than 60,000 businesses employing more than 1 million staff. Our membership includes businesses of all sizes, from large international companies operating in Australia and iconic Australian brands to family-run SMEs. Our members operate across a wide cross-section of the Australian economy and are linked to the broader economy through national and international supply chains. We have ongoing representative engagement with employers of all sizes and in diverse sectors, through the provision of membership, legal advice, consulting and training services.

3. We make this submission on behalf of our members.

4. Along with the broader community, we recognise that businesses and their workers play an important role in delivering equality. For this reason, an anti-discrimination framework that is simple to understand, not overly complex and recognises that employers can comply in different ways is needed to ensure that the legislation is practical, fair and capable of being complied with.

5. However, we are concerned about the increasing complexity, overlap, and regulatory burden imposed by the current anti-discrimination framework, which includes the DD Act, other Commonwealth anti-discrimination laws, the Fair Work Act 2009 (Cth) (Fair Work Act), state and territory anti-discrimination laws, and work health and safety laws. Any consideration of the DD Act must take into account these other and additional complex and overlapping obligations

6. It is important that any proposed changes to the DD Act consider and address the needs and interests of obligation-holders as well as those with attributes to which the protective purposes of the DD Act are directed. This is important for a proper balancing of interests and regulatory impacts, and to recognise the value of balanced, practical measures and obligations for both groups.

7. The Australian Industry Group’s responses, based on particular themes and issues canvassed through questions in the Issues Paper are set out below and are focused on the impact that any proposed changes might have in the workplace. We have included general comments in Part 1 that highlight key overarching considerations relevant to our submission and Parts 2 to 7 provides our responses to the specific consultation questions.

Part 1 - General comments

A. Disability Discrimination Act 1992

8. Under the DD Act, it is unlawful for an employer to discriminate against an employee on the ground of the employee’s disability:

   • in the terms of conditions of employment that the employee affords the employee1;
   • by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment2; or
   • by dismissing the employee3; or
   • by subjecting the employee to any other detriment4.

9. The DD Act also prohibits discrimination on the ground of disability in recruitment, including the terms and conditions on which employment is offered5.

10. The discrimination may be direct6 or indirect7. For example, it may be direct where an employer discriminates against an employee with a disability by dismissing the person due to their disability or, it may be indirect, where the employee is required to comply with an unreasonable workplace requirement or condition and is dismissed because their disability made the employee unable to comply with that workplace condition.

11. It is also unlawful for an employer to harass an employee or potential employee with a disability, in relation to that disability8.

12. The meaning of ‘disability’ is interpreted broadly. It can be an illness or injury that is physical or mental, pre-existing, and work or non-work related. It includes behaviour that is a symptom or manifestation of an illness or injury9.

1 Section 15(2)(a) 2 Section 15(2)(b) 3 Section 15(2)(c) 4 Section 15(2)(d) 5 Section 15(1) 6 Section 5 7 Section 6 8 Section 35 9 Section 4 and the majority decision in Purvis v New South Wales (2003) 217 CLR 92.

B. Unique aspects of the workplace

13. The Australian Industry Group considers it appropriate for the Attorney General to specifically consider the unique characteristics of the workplace when undertaking this review.

14. This is because, unlike other scenarios, the workplace has several complex, overlapping and often contradictory legal frameworks, each of which is relevant to our members when managing their staff throughout the work lifecycle.

15. The substantial and onerous regulatory and compliance burden that employers already face when managing disability in the workplace must not be exacerbated.

C. Managing ill or injured workers

16. The complexity associated with managing disability in the workplace is often most apparent in the management of ill or injured workers, particularly in circumstances of poor performance or misconduct and where such illness or injury may also constitute a disability.

17. Relevantly, the Australian Industry Group’s lawyers and consultants, WHS and workers compensation consultants and its Workplace Advice Line dedicate a significant amount of time supporting members in relation to this issue. For example, the third most common case topic for the month of September 2025 for the Australian Industry Group Workplace Advice Line was “managing ill or injured employees.” This is consistent with our previous months’ records. Our lawyers and consultants report similarly.

18. Any review of the DD Act must take account of the fact that employers are required to simultaneously navigate a myriad of other additional and similarly onerous and complex legal obligations when managing the performance or conduct of a worker whose illness or injury may also be a disability. This includes but is not limited to:

• State and territory anti-discrimination legislation.
• The contract of employment and workplace policies.
• The Fair Work Act:
  • Unfair dismissal.10
  • Temporary absence.11
  • General protections – workplace rights12.
  • General protections – anti-discrimination13.
  • Stop bullying jurisdiction14.

10 Part 3-2 of the Fair Work Act 11 Part 3.1 of the Fair Work Act 12 Part 3-1 of the Fair Work Act 13 Section 351 of the Fair Work Act 14 Part 6-4B of the Fair Work Act

• Unlawful termination15
  • Right to request flexible working arrangements16.
  • Unpaid parental leave provisions17.
  • Paid and unpaid personal/carer’s entitlements18.
• Workers’ compensation legislation.
• Industrial instruments (including a modern award or enterprise agreement).
• Privacy and workplace surveillance laws.

19. The difficulties in managing this process become particularly acute if the impact of a person’s disability on their performance or conduct is not immediately apparent, which is often the case.

20. In practice, if an employer wishes to manage an employee’s performance or misconduct alongside the person’s rights and obligations related to a disability, the process often becomes an extremely long and drawn out affair. It may require consideration of a potential workers compensation claim, managing refusals to communicate, applications for anti-bullying orders, the lodging of a grievance or complaint (under a policy, contract of employment or industrial instrument), the filing of a claim of unlawful adverse action and the triggering of dispute resolution procedures under a contract of employment or industrial instrument. If any of these issues arise, the process may need to be delayed or re-routed, pending the resolution of the relevant matter. This uses significant time and resources for all concerned.

21. For example, when undertaking any management of performance or conduct of an employee that may have a disability (whether known or unknown, proven or not), an employer must:

• Consider whether the reason for the poor performance or inappropriate conduct is because of the employee’s disability – in which case, the obligations to not discriminate on the ground of disability and to consider making reasonable adjustments will be triggered under the DD Act.
• Comply with requirements under unfair dismissal laws in the Fair Work Act (and equivalent state and territory laws if relevant), including:
  • only dismissing the employee if they have a valid and lawful reason, which includes not breaching obligations under the DD Act; and
  • providing procedural fairness , including notifying the employee of their concerns, giving the employee the opportunity to respond, warning the employee of potential outcomes, providing support and disciplining in proportional manner given the employee’s age, length of service, likelihood of re-employment, etc.
• Ensure the illness or injury is not exacerbated by the process of managing the person’s performance or conduct, as this may trigger a workers compensation claim or be in breach of the employee’s obligations under work, health and safety laws.

15 Part 6-2, Divisions 2 of the Fair Work Act 16 [insert] 17 [insert] 18 [insert]

• Comply with the contract of employment, applicable industrial instrument and/or policy.
• Comply with other applicable workplace laws, including:
  • privacy laws (i.e., if you are collecting the employee’s health information);
  • work health and safety obligations to implement control measures to reduce or eliminate risks of injury or harm to persons in the workplace (i.e., are there hazards at work such as bullying or harassment that need to be dealt with for the safety of the employee and which may have contributed to their poor performance or misconduct);
  • general protections provisions in the Fair Work Act (i.e., workplace rights to make a complaint or inquiry in relation to employment, unlawful discrimination in breach of section 351 or protections for temporary absences from the workplace in sections 352 and 772).
• If information has been collected through workplace monitoring and surveillance, comply with those requirements, depending on the jurisdiction (in addition to privacy laws).
• Ensure any action being taken is “reasonable management action” carried out in a “reasonable manner”? If not – this could be bullying under Part 6-4B of the Fair Work Act or may be contributory cause of a workplace injury under workers compensation legislation.
• Only obtain medical information or require attendance at a medical examination in a lawful manner by considering whether:
  • The contract of employment or industrial instrument provide the employer with the ability to direct the employee to provide further medical information or attend a medical examination.
  • The medical information is necessary for the health and safety of the employee and other persons, including to determine:
    • the employee’s fitness for work; and
    • any reasonable adjustments that could be made to enable the employee to perform the inherent requirements of the employee’s job (i.e., as required under the DD Act).
  • The medical information is necessary, in circumstances of an ongoing absence or the likelihood of intermittent absences, to assist the employer in putting place work arrangements to ensure duties continue to be performed so that it is able to meet its business requirements.
• Consider any requests made by an employee for a flexible working arrangement on the ground of disability – including the cost, capacity to change working arrangements, the effect on efficiency or productivity and impact on customer service.
• Consult and/or communicate with the employee and/or their representative at all stages in a sensitive manner that does not exacerbate the illness or injury.

22. If, as noted above, the reason for the poor performance or misconduct is the person’s disability (whether disclosed or not), the DD Act (and other state and territory laws) imposes additional and similar (but not the same) obligations, including to not discriminate (directly or indirectly) and to make reasonable adjustments/changes that may enable the ‘disabled’ employee to perform the inherent requirements of

their role. Adjustments that would enable the performance of the inherent requirements will be reasonable unless they cause unjustifiable hardship, including to the employer’s business.

23. The task of considering what might be ‘reasonable adjustments’ for the purposes of the DD Act generally imposes a significant compliance burden on the employer.

24. The first step in this process is for an employer is to establish what are the inherent or essential requirements of the employee’s particular role. This is not as simple as what it sounds.

25. For example, to establish the inherent requirements of a job, an employer may need to consider the essential tasks of the particular role and the required skills and attributes, including as follows.

• If, as is usually the case, it is unclear what the role requirements are, the employer may need to consider:
  • the applicable industrial instrument and any duties set out under that;
  • any job description document – noting that it may not be up-to-date or comprehensive;
  • the terms of the employee’s contract of employment – which may or may not be up-to-date and is likely to provide for flexibility to direct the employee to undertake duties as required by the employer from time to time or on an ongoing basis;
  • the advertisement for the job that applied when the employee was recruited, which may or may not be still relevant;
  • if there is no documentation or the documentation is inadequate, documentation that applies to an employee working in the same job (if any);
  • seeking advice from an industry expert (such as an occupational physiotherapist) who may (at a cost) be able to provide guidance on what duties are required to perform the role.
• Once having identified the duties the role encompasses, the next step is to then determine what are essential and what are non-essential duties of the role. This is likely to require the employer to take the following further steps:
  • to confirm that any documented tasks are what is actually performed in practice – i.e., often job descriptions are not updated to reflect what the employee does in practice, including at their role may change over time;
  • to analyse what might be essential and what might be peripheral – on the basis that an essential or inherent mental or physical task may be one that if it was removed would result in the employee’s role being a different one;
  • to consider how long the employee spends on each task, which may be relevant to the determination of whether a task may be essential or not.
• To then also consider key mental or physical skills or attributes that are required to adequately (albeit not perfectly) perform the task. This includes, for example, the ability to work in a way that does not impose a risk to the health and safety of the employee or other workers etc.

26. As set out in the Review Paper, an employer is not required to make a reasonable adjustment if it would impose unjustifiable hardship. This term is not defined in the DD Act, but it does provide a non-

exhaustive list of circumstances that are relevant in determining whether an adjustment would impose unjustifiable hardship on an employer and which are require further careful consideration. These include the following:

• The nature of the benefit or detriment to be imposed on any person concerned, including the community.
• The effect of the employee’s disability.
• The financial circumstances and the estimated amount of expenditure required to be made by the employer.
• The availability of financial and other assistance to the employer.

We note any process of performance or conduct management may have additional considerations or rights that may need to be considered, and which have not been included in this example.

Part 2 — Updating understandings of disability discrimination

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

30. We do not support developing a new definition of disability.

31. However, if changes are recommended, we would support a definition that is clear, practical, and consistent with all other Australian jurisdictions.

32. If changes are made despite our submission, it must not expand obligations or add complexity and must minimise the compliance burden for employers in managing illness and injury in the workplace, where such illness or injury also constitutes a disability.

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

32. We do not support developing a new definition of disability.

33. If changes were recommended by the Attorney General’s Department, it would be appropriate for an exposure draft to be issued and further intermediate consultation to take place, so we can provide comments on specific changes.

33. If a significant change was made to the definition, it may also be necessary to provide for an extended transitional period to support employers in making adjustments in how they manage persons with a disability in their workforces and/or prepare to achieve compliance.

34. The Australian Human Rights Commission (AHRC) should also develop appropriate guidance materials that accurately reflect any new definition in terms that can be readily understood by businesses of all sizes, including small and medium enterprises. The AHRC should seek input from industry stakeholders such as the Australian Industry Group to ensure that such guidance meets the needs of business. We note also our comments below in respect of the guidelines issued by the AHRC for the positive duty under the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act).

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

36. We do not support legislative change to expressly provide for intersectional discrimination.

37. The highly variable nature of intersectional experiences would add unnecessary complexity and exacerbate the already onerous compliance burden. Existing processes allow for consideration of multiple attributes, including through the complaints and conciliation process.

38. This concern could be best addressed through the development of appropriate practical guidance from the AHRC, with the benefit of industry consultation on the development of such materials.

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

40. We do not support other changes.

41. Existing processes allow for consideration of multiple attributes in complaints as set out above.

42. We support the AHRC developing further appropriate non-binding practical guidance, informed through industry consultation.

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

44. We support retention of the comparator test for direct discrimination.

45. This test is well understood, supported by extensive case law, and provides clarity for employers and people with a disability. Further, this test is applied under other anti-discrimination laws in state and

territory jurisdictions, and it would be highly problematic to introduce a change that exacerbated the already inconsistent approaches taken across the various jurisdictions.

43. We are also concerned that a move to a detriment-only test would create uncertainty and increase the risk of speculative claims from an employer’s perspective.

44. Understanding is best supported through appropriate non-binding guidance materials to be developed by the AHRC with industry input.

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

45. The standard burden of proof should be retained.

46. We strongly oppose any reversal of the onus of proof.

47. We note that a reverse onus of proof has proven to be very problematic for the Fair Work Commission (and employers) in relation to general protections disputes under the Fair Work Act.

48. The growth in general protections cases involving dismissal is 13% over 2024-2025 as compared to 2023-2024 and 27% above the 5 year average. This led to Justice Hatcher, President of the Fair Work Commission, recently commencing a review of the Fair Work Commission’s procedures, practices, the website and of forms to achieve efficiencies, including by not facilitating general protections claims which do not have reasonable prospects of success19.

49. On 12 November, President Hatcher issued a statement saying that “[t]his continuing rate of growth in the Commission’s workload is unsustainable within the Commission’s current operational, performance and funding structures.” According to Justice Hatcher, President of the Fair Work Commission, this rate of growth has accelerated in the first quarter (Q1) of 2025–26. From 1 July to 30 September 2025, the Commission has received a total of 13,671 lodgments, which exceeds the three-year Q1 average by 45%. Of these, 2,120 were general protections dismissal applications, representing a 57% increase on the three-year average for lodgments in Q1. If this trend continues, the number of total lodgments for 2025–26 will exceed 50,000, and the number of general protections dismissal applications will exceed 8,000. Significantly, this trend appears to be accelerating, whereby in the last year alone there has been a 24% increase in general protections matters involving dismissal20.

50. Introducing a reverse onus of proof in the context of the DD Act may create similar problems.

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

19 Workplace Express, “FWC confronts “massive” workload surge”, 10 October 2025. 20 Fair Work Commission — President’s statement: Reforms to general protections dismissal application processes, 12 November 2025.

51. The current test, including the “not able to comply” element and the reasonableness standard, is appropriate and familiar to employers.

52. We do not support its removal or replacement.

53. Any identified inconsistencies should only be addressed in a holistic way across all jurisdictions and not through piecemeal changes in a particular jurisdiction, including at a federal level. To do otherwise would further exacerbate the regulatory and compliance burden already imposed by federal, state and territory anti-discrimination laws, alongside obligations created by other workplace laws relevant to the particular circumstances as discussed above.

54. We support an educational uplift through the development and publication of appropriate non-binding guidance materials by the AHRC with industry input.

55. Should the reasonableness element in the definition of indirect discrimination be:

• removed
• retained and supplemented with a list of factors to consider
• replaced by a legitimate and proportionate test
• other

Please expand on your response.

55. Currently, the imposition of a condition, requirement or practice is not indirect discrimination if it is a reasonable requirement, condition or practice (reasonableness element).

56. The reasonableness element should be retained. It is a familiar and workable concept in Australian law.

57. Supplementing the articulation of the reasonableness element with a non-exhaustive list of factors may assist if those factors are consistent with current case law, but a shift to a “legitimate and proportionate” test is not supported.

58. We have previously noted the importance of not making piecemeal changes that will exacerbate cross-jurisdictional inconsistencies and re-emphasise that here in the context of this question.

59. Should the language of ‘does not or would not comply, or is not able or would not be able to comply’ be removed from the definition of indirect discrimination?

60. No.

61. This element is important to ensure that only those genuinely disadvantaged by a requirement are able to bring a claim. Its removal would increase uncertainty and risk for employers.

61. We again reiterate the importance of not making piecemeal changes that will inevitably exacerbate cross-jurisdictional inconsistencies in the context of this question.

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

63. We note the Issues Paper suggests the inclusion of a reference to the Disabilities Convention in the objects provision could promote an interpretation of the DD Act, which is consistent with obligations under the Disabilities Convention, due to the effect of the Acts Interpretation Act 1907 (Cth).

64. This creates a risk of new or expanded obligations for employers in the DD Act, and we do not support the inclusion of this reference in the DD Act.

65. It is also our position that any such change may create further cross-jurisdictional inconsistency in relation to the way disability discrimination is regulated. This would exacerbate the current regulatory burden, at least in respect of employers managing employees with ‘disability’ in the workplace.

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

67. We do not support a legislative requirement for a beneficial interpretation, as this would create uncertainty and risk for duty holders, further increasing what is an already onerous regulatory burden.

68. Interpretation should be guided by the text of the DD Act and established legal principles.

69. This change would not promote consistency across jurisdictions, and this exacerbates the difficulties that employers currently face when managing disability within their workforce as set out in Part 1 above.

Part 3 – Positive duty to eliminate discrimination

68. The Australian Industry Group does not support the imposition of positive duties to eliminate discrimination.

The DD Act already sufficiently requires preventative measures

69. The DD Act already imposes a duty on duty holders to not discriminate on the ground of disability, and this achieves the same underlying aim as a “positive duty”.

70. Additionally, the Issues Paper states that:

    “Under state and territory workplace health and safety laws, employers currently already have a duty to prevent risks to the health and safety or workers and others impacted by their work, including managing the risk of exposure to discriminatory conduct. The Disability Discrimination Act also requires equal protection of health and safety for people with disability at work. Therefore, similar obligations arise under the Disability Discrimination Act and under occupational health and safety legislation.”[emphasis added].

71. This appears to acknowledge there is no need for change because preventative action is already required by the interaction between the DD Act and WHS Act.

72. We observe also that requirements under the DD Act such as the need to make reasonable adjustments and the option of having a disability action plan are further examples of preventative measures that are already provided for in the existing framework, and which have the same effect as a positive duty.

Employers’ experience with a positive duty under the Sex Discrimination Act

73. In the Attorney General’s review and its consideration of whether it introduces a positive duty in the DD Act, it is essential to take into account the employers’ experience in relation to the introduction of a positive duty under the Sex Discrimination Act.

74. Our members consistently tell us the commencement of the positive duty under the Sex Discrimination Act created a very onerous regulatory and compliance burden.

75. We note that we advocated against the introduction of a positive duty in the Sex Discrimination Act, including because WHS laws already required employers to eliminate risks of sexual harassment, as far as reasonably practicable. We had serious concerns that the creation of a second positive duty would create unnecessary complexity and be extremely confusing for many employers. With the benefit of hindsight, this is exactly what has happened in the context of the Sex Discrimination Act.

76. Unfortunately, at the time when the then Government was considering whether it would introduce the positive duty it made certain assumptions about WHS laws which were not correct.

77. We refer the Attorney General to the Revised Explanatory Memorandum for the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. At paragraph 16 it states as follows:

    “The positive duty is also intended to operate concurrently with the existing duties in the model WHS laws, which require employers and PCBUs to provide a safe working environment for workers, so far as is reasonably practicable. In practice, this requires the implementation of measures by PCBUs, such as having policies in place, conducting training and addressing incidents. It is intended that the model WHS laws and positive duty in the SD Act would operate in a mutually reinforcing way to build safer and more respectful workplaces.” [emphasis added]

78. This statement did not accurately capture what was required under WHS laws and failed to recognise the lack of equivalence with the positive duty under the Sex Discrimination Act.

79. In particular, the reference to the implementation of measures by PCBUs exercising WHS duties was and is always more than simply having policies in place, conducting training and addressing incidents. WHS laws require different types of interventions. As sexual harassment is a psychosocial risk, the Model WHS Regulations for psychosocial risk (i.e., including sexual harassment) provided (and continues to provide) guidance on what is expected to satisfy obligations under WHS laws. In particular, Reg 55D(2) specifically states that, when implementing risk controls, the employer must consider all relevant matters, including:

    (a) the duration, frequency and severity of the exposure of workers and other persons to the psychosocial hazards; and

    (b) how the psychosocial hazards may interact or combine; and

    (c) the design of work, including job demands and tasks; and

    (d) the systems of work, including how work is managed, organised and supported; and

    (e) the design and layout, and environmental conditions, of the workplace, including the provision of:

    (i) safe means of entering and exiting the workplace; and

    (ii) facilities for the welfare of workers; and

    (f) the design and layout, and environmental conditions, of workers’ accommodation; and

    (g) the plant, substances and structures at the workplace; and

    (h) workplace interactions or behaviours; and

    (i) the information, training, instruction and supervision provided to workers [i.e., policies, training and procedures] [emphasis added]

80. Relevantly, (i) the information, training, instruction and supervision provided to workers (i.e., policies, training and procedures) is a lower order control under WHS laws and carries little weight in terms of satisfying obligations. Instead, employers must first consider ‘higher order’ measures such as “the design of work”, “systems of work including how work is managed, organised and supported”, and the “design and layout of the workplace”. This approach is not to simply have “policies in place, conducting training and addressing incidents,” as stated in the Revised Explanatory Memorandum.

81. We also refer the Attorney General to paragraph 92 of the Revised Explanatory Memorandum which states:

    *“While the model WHS laws and SD Act use alternative language to describe the obligation on employers and the PCBUs, the conduct required for compliance is anticipated to be the same. Relevantly both the model WHS laws and the SD Act require PCBUs to do what is reasonable in the circumstances. In terms of assessing what is reasonable, the list of matters for consideration in new subsection 47C(6) substantially overlap with the list of relevant matters in section 18 of the model WHS laws. This indicates that employers and PCBUs would take the same practical steps, such as implementing policies and providing training, to meet their obligations under both frameworks.” [emphasis added]

82. While there may indeed be some overlap in compliance activities, the examples referred to in the Revised Explanatory Memorandum fell far short of the established approach used by WHS regulators even at that time. As discussed above, WHS laws require employers to use more interventionist controls to eliminate the risk of sexual harassment, and not just the application of administrative controls such as training and policies. There was never any real basis for the statement “anticipated to be the same”.

83. The disparity between the duties has become even more pronounced since the introduction of the positive duty under the Sex Discrimination Act, with WHS regulators increasingly targeting psychosocial risks in the workplace, particularly sexual and gender-based harassment. This has created ever increasing confusion for employers who are struggling to understand what they need to do to comply with what are in effect two separate but overlapping duties in respect of the same set of behaviours.

84. As you will see in the table below, most state and territory jurisdictions now have their own specific requirements under WHS laws relevant to risks of sexual and gender-based harassment.

85. .

86. When the AHRC issued its Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) (Guidelines) the AHRC confirmed that that the required measures to address the positive duty and the WHS duty were not and are not the same. As stated at page 13 in the Guidelines:

    Satisfying the positive duty in the Sex Discrimination Act, however, will not necessarily ensure that a ‘person conducting a business or undertaking’ has met all of their WHS duties to ensure the health and safety of workers, in all of the ways that health and safety issues can arise.

    Likewise, satisfying WHS duties may not equate to compliance with the positive duty under the Sex Discrimination Act (which can extend beyond conduct that presents an identifiable threat to health and safety).

    Safe Work Australia and WHS regulators have produced detailed guidance about what people must do to satisfy their WHS duties in relation to psychosocial hazards, including sexual harassment. The Commission strongly recommends that organisations and businesses separately consult this WHS guidance. [emphasis added]

87. In addition to the problem of overlapping and separate duties, we also have concerns with the approach

AHRC’s approach appears to be broader to that envisaged by the legislators. In making this point, we nonetheless acknowledge the AHRC’s commendable work in relation to Respect@Work and the AHRC’s continuing commitment to engagement with industry as to how they can best support employers.

88. On this basis, we respectfully ask the Attorney General to also consider what was intended by way of compliance at the time when the positive duty was introduced under the Sex Discrimination Act. As stated at paragraph 15 of the Revised Explanatory Memorandum:

    The positive duty is intended to align with section 106 of the SD Act, which relates to the vicarious liability of employers for unlawful acts done by their employees or agents. Under section 106 of the SD Act, an employer is not liable for the unlawful conduct of their employees or agents if they have taken ‘all reasonable steps’ to prevent their employees from engaging in the conduct. This means that employers should already be preventing discrimination and harassment by their employees or agents in order to manage their potential liability under the SD Act. [emphasis added]

89. This statement indicated the legislators did not anticipate that the positive duty would require anything beyond what employers should already be doing to avoid vicarious liability for the actions of their employees and agents.

90. The Revised Explanatory Memorandum considered relevant case law, including as replicated below to give guidance on the extent of the duty:

    [86] In Aleksovski v Australia Asia Aerospace Pty Ltd, Raphael FM noted that ‘it is generally accepted that “all reasonable steps” in connection with sexual harassment in the workplace means that the employer is required to have a policy in relation to sexual harassment which should be clear and placed in written form and communicated to all members of the workforce.’21 In that case, Raphael FM concluded that there was no system in place for ensuring that the employer’s equal opportunity policies and policies on sexual harassment were disseminated in the workplace. Raphael FM also found that the employer’s ‘failure to thoroughly set out appropriate guidelines and provide appropriate training would … make the respondent vicariously liable for the actions of the employee.’ [emphasis added].

    [87] In the recent case of Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13, the Full Court of the Federal Court of Australia observed that if an employer seeks to rely on workplace policies to show that they are not vicariously liable, then ‘it may be necessary to demonstrate not only that the policies were communicated to the relevant employee, but that they were periodically reinforced.’ The court emphasised that policies should have a deterrent impact by clearly stating that harassment is against the law and setting out the consequences for perpetrators and employers. In that case, the court found that the relevant training materials did not clearly state that sexual harassment is unlawful or include statements on what disciplinary action would be taken if sexual harassment occurred. The court concluded that the employer was vicariously liable due to absence of evidence that there were steps taken to convey the seriousness and consequences of sexual harassment to employees. [emphasis added]

21 Aleksovski v Australia Asia Aerospace Pty Ltd [2002] FMCA 81, [88].

[88] However, in McAlister v SEQ Aboriginal Corporation [2002] FMCA 109, Rimmer FM found that the employer had taken all reasonable steps in the circumstances and was not vicariously liable for the conduct of its employee. In that case, the employer was a small operation funded to provide Aboriginal legal services and had limited resources. Rimmer FM found that the employer had clearly established their expectations of employees in relation to sexual harassment by having an appropriate complaint handling process, running workshops for staff with information about sexual harassment and discrimination obligations, and having senior staff reiterate that sexual harassment would not be tolerated, among other actions. [emphasis added]

> [89] The Commission has also published guidance for employers on vicarious liability and practical steps that can be taken to prevent acts of discrimination and harassment. The guidance recognises that steps will differ across organisations, but suggests a range of actions, including:
>
> - having a strong and clear policy on discrimination and harassment and making sure it is communicated effectively in the workplace
> - ensuring there is clear, unambiguous and visible support from senior management for the policy
> - developing a procedure to respond to internal complaints about discrimination and harassment in a fair, timely and effective way
> - treating all complaints seriously and investigating them promptly
> - ensuring all staff are aware of the organisation’s policies and procedures regarding discrimination and harassment
> - providing regular training to staff to ensure they understand their workplace responsibilities and to identify and respond to incidents of sexual harassment.
> [emphasis added]

91. The extracts from the Revised Explanatory Memorandum as set out above indicated that Parliament intended that the positive duty (being equivalent to “all reasonable steps”) would, for example, require an organisation to:

• have a policy that was supported by management
• have a good grievance handling procedure through which complaints were investigated fairly, effectively and promptly, and
• ensure that staff were aware of and trained in the policy and procedures as they relate to sexual harassment – including the discrimination and harassment policy and the grievance process.

92. Unfortunately, the AHRC’s Guidelines do not align with this legislative intention as expressed in the Revised Explanatory Memorandum, and this is acknowledged by the AHRC at page 19:

    Whether an employer or principal has taken ‘all reasonable steps’ to avoid vicarious liability in a particular case is a matter to be determined by a court, not the Commission. Following guidance provided by the Commission on how to satisfy the positive duty, however, will help employers to demonstrate that they are not vicariously liable under the Sex Discrimination Act. The Standards

and examples outlined in these Guidelines are consistent with, and in some respects go further than, the actions that courts have traditionally expected from employers when considering vicarious liability claims under the Sex Discrimination Act. [emphasis added]

93. Despite this lack of apparent alignment, the Guidelines indicate the AHRC requires employers to comply with all 112 pages, 7 standards and 4 guiding principles:

    Together, these Principles and Standards give organisations and businesses guidance on what the Commission expects them to do to meet their positive duty under section 47C of the Sex Discrimination Act.22

94. This has created a major issue for employers, who in addition to facing overlapping obligations under the Sex Discrimination Act and WHS laws, are also required to comply with AHRC Guidelines that impose expectations that appear to exceed the original intent of the Sex Discrimination Act’s positive duty.

95. We set out below illustrative examples of what was proposed by the Revised Explanatory Memorandum which further emphasises the apparent overreach of the Guidelines.

Small employer

119. Joe is the owner of a small delivery business. Joe has seven full-time workers, including six male delivery drivers and one female administrative officer. Joe’s business has been operating for two years and makes a modest profit. As Joe is an employer, Joe must take measures to eliminate, as far as possible, himself (as a duty holder) and his employees from engaging in the forms of unlawful discrimination covered by subsection 47C(2). Joe must also take measures to eliminate, as far as possible, his employees from experiencing the forms of unlawful discrimination covered by subsection 47C(4). Joe is aware of the risk of his employees experiencing discriminatory conduct while at work, including by customers. Given the nature of his business, Joe writes a short policy on harassment and discrimination, including how a complaint would be handled and responding to inappropriate conduct by customers. Joe discusses the policy during a staff meeting and provides a printed copy to all staff. Joe also regularly checks in with his staff to discuss rostering, leave and other matters, including any behavioural issues. As a result of these measures, Joe is likely to be compliant with the positive duty under section 47C in the circumstances.

Medium employer

120. Aida and Daniel are the co-owners of a large hotel in a ski resort. The hotel employs more than 60 staff in a range of roles, including managers, chefs and cleaners. Due to the seasonal nature of the business, the majority of staff are part-time or casuals, and there is a high staff turnover. Aida and Daniel are employers and must take measures to eliminate, as far as possible, themselves (as duty holders) and their employees from engaging in the forms of unlawful discrimination covered by subsection 47C(2). Aida and Daniel must also take measures to eliminate, as far as possible, their employees from experiencing the forms of unlawful discrimination covered by subsection 47C(4). Aida and Daniel recognise the risks associated with short-term work and develop an action plan for complying with the positive duty. As part of this

22 Page 21, Guidelines.

plan, Aida and Daniel task their human resources officer with developing a policy on harassment and discrimination and ensuring this is part of the onboarding process for new staff. Aida and Daniel also require managers to complete externally provided training on harassment and discrimination on an annual basis. The managers are then responsible for ensuring their staff are aware of the policy and reiterating behavioural standards. As a result of these measures, Aida and Daniel are likely to be compliant with the positive duty under section 47C in the circumstances.

Large employer

121. Ben is the human resources manager for ‘Future IT,’ a technology company that employs more than 250 staff. The majority of staff work remotely from across Australia in small teams. Future IT must take measures to eliminate, as far as possible, its employees from engaging in the forms of unlawful discrimination covered by subsection 47C(2). Future IT must also take measures to eliminate, as far as possible, their employees from experiencing the forms of unlawful conduct covered by subsection 47C(4). To ensure Future IT is meeting its obligations under the positive duty, Ben is responsible for implementing a strategic plan on harassment and discrimination. The plan includes confidential staff surveys, data collection on complaints, regular reviews of existing policies and procedures, and mandatory training for managers and new staff on harassment and discrimination. To mitigate the risks associated with a remote workforce, Ben also develops and circulates specific guidance on harassment and discrimination in a remote context and the supports available to staff. As a result of these measures, Future IT is likely to be compliant with the positive duty under section 47C in the circumstances.

122. To put this further into perspective, it is relevant to understand that the Guidelines define organisations/businesses as follows:

• Small organisations and businesses have fewer than 20 workers.
• Medium organisations have between 20 and 199 workers.
• Large organisations or businesses generally have 200 or more workers.

97. We note the Counts of Australian Business, including Entries and Exits issued on 26 August 2025 by the Australian Bureau of Statistics indicates that as at 30 June 202523, there were:

• 920,999 business with fewer than 20 employees (approximately 92.6% of all businesses) – with 688,870 having 1-4 employees, and 232,129 having 5-19 employees.
• 67,857 business with between 20 and 199 employees (approximately 6.8% of all businesses)
• 5,322 businesses with 200+ employees (approximately 0.5% of all businesses)

23 https://www.abs.gov.au/statistics/economy/business-indicators/counts-australian-businesses-including-entries-and-exits/latest-release

98. We then put into context by comparing what is required for compliance by the Revised Explanatory Memorandum versus the Guidelines for small business (i.e., 92.6% of businesses in Australia):

Revised Explanatory Memorandum – small business

Joe writes a short policy on harassment and discrimination, including how a complaint would be handled and responding to inappropriate conduct by customers. Joe discusses the policy during a staff meeting and provides a printed copy to all staff. Joe also regularly checks in with his staff to discuss rostering, leave and other matters, including any behavioural issues.

AHRC Guidelines – small business

Standard 1 - Leadership

Senior leaders understand their obligations under the Sex Discrimination Act and have up-to-date knowledge about relevant unlawful conduct.

• Senior leaders read guidance materials published by the Commission and on the Respect@Work website.
• Senior leaders arrange for the organisation/business to subscribe to relevant updates from regulators and peak bodies on developments in laws relating to relevant unlawful conduct and for this information to be distributed to senior leaders.
• Senior leaders attend quality education sessions on the applicable laws and their rights and responsibilities. This education is refreshed/updated regularly to ensure that senior leaders maintain current awareness.

Senior leaders are responsible for ensuring that appropriate measures for preventing and responding to relevant unlawful conduct are developed, recorded in writing, communicated to workers and implemented. Senior leaders regularly review the effectiveness of these measures and update workers.

• Senior leaders create or approve a document setting out the measures that the organisation/ business will take to eliminate relevant unlawful conduct, as far as possible. This may be called a ‘prevention and response plan’. An example prevention and response plan is linked in Appendix 1.
• Senior leaders ensure that the measures:
  • address the seven Standards
  • are appropriately tailored to the circumstances of the organisation/business
  • are informed by data about the nature and extent of relevant unlawful conduct in the organisation/business (which may be obtained through worker consultation, HR information and industry surveys) – see Standard 4: Risk management and Standard 7: Monitoring, evaluation and transparency
  • are communicated effectively within the organisation/business.
• Senior leaders regularly check that the chosen measures have been implemented.
• Senior leaders ensure that workers are consulted to obtain their feedback about whether the measures are effective and whether any changes should be made.

• Senior leaders review relevant data to understand the effectiveness of measures.
• Senior leaders ensure that measures are updated to ensure ongoing effectiveness, as required. For example, changes may be required to education programs, reporting and response processes, policy statements, supports and specific control measures.
• Senior leaders set timeframes for regularly reviewing the ‘prevention and response plan’, for example, annually or following a significant incident.

Senior leaders are visible in their commitment to safe, respectful and inclusive workplaces that value diversity and gender equality. They set clear expectations and role model respectful behaviour.

• Senior leaders make statements (internally and, where appropriate, externally) that:
  • express commitment to eliminating relevant unlawful conduct
  • articulate why gender equality, diversity, inclusion and respectful workplace conduct are important
  • acknowledge the existence of relevant unlawful conduct and the harm that it causes
  • apologise to people affected by past conduct and commit to improvement (including by giving examples of what has changed/what will change)
  • outline progress made against their commitment and actions taken.
• Statements can be made verbally (for example, at induction, in team meetings and CEO Town Halls) or in writing (for example, via email, on the staff intranet or the website of the organisation/business).
• An example of a public leadership statement from the Champions of Change Coalition is linked in Appendix 1.

Senior leaders communicate expectations about respectful behaviour at work with workers and third parties (such as customers, clients, patients and suppliers).

• To workers:
  • Senior leaders discuss expectations with workers, such as at induction, in team meetings, during ‘toolbox talks’, at CEO Town Halls.
  • Senior leaders ensure that expectations are reinforced in writing, such as through signs in the workplace, brochures, workplace policies, via the intranet or email, through workers’ contracts and through organisational values.
• To third parties who have contact with workers (such as customers, clients, suppliers and patients):
  • Senior leaders ensure that signs are displayed which state that it is a respectful workplace and that unlawful behaviour towards workers will not be tolerated.

Senior leaders ensure that the expectations they set are upheld.

• Senior leaders acknowledge positive behaviour at work (for example, at team meetings, and through staff awards and performance review and promotion processes).
• Senior leaders ensure consistent and proportionate consequences for people who engage in relevant unlawful conduct, regardless of their position within, or importance to, the organisation/business.
• Senior leaders ensure that workers who report relevant unlawful conduct do not suffer victimisation or negative consequences for their career progression or health and safety.

Senior leaders role model respectful behaviour.

• Senior leaders use respectful and inclusive language.
• Senior leaders call out disrespectful behaviour (including the behaviour of third parties).
• Senior leaders undertake self-reflection and seek feedback.

Senior leaders support and encourage workers to undertake relevant education (including training or formal learning) through what they say and how they act.

• Senior leaders discuss education as part of a commitment to cultural change, gender equality and inclusion at work, not merely as a ‘tick-a-box’ compliance requirement.
• Senior leaders prioritise and speak about their own training and education and its benefit.
• Senior leaders provide time during work hours for workers to complete relevant education.

Records to demonstrate actions taken to meet standard 1:

• documented proposed measures to eliminate relevant unlawful conduct (by reference to each of the Standards) and progress toward implementation of those measures (for example, a written ‘prevention and response plan’)
• correspondence and evidence of consultation with workers (and their representatives, where relevant) such as meeting agendas and notes
• feedback from workers, results of worker surveys and exit interviews and actions taken to address issues raised
• policies, codes of conduct, senior leaders’ contracts and position descriptions, performance review documents, incentive plans and Key Performance Indicators (KPIs)
• induction manuals and processes for senior leaders
• organisational values, notice boards and the intranet
• board papers and minutes
• statements made about relevant unlawful conduct within the workplace or externally
• signage for third parties (such as customers, clients and patients) about relevant unlawful conduct and behavioural expectations for terms of entry or service
• a copy of these Guidelines or other relevant Commission resources (including those specifically for small organisations and businesses) signed by senior leaders to confirm that they have been read and understood

• records of attendance at committees, groups and events focused on inclusion, and memberships of relevant external organisations
• attendance records for training sessions or modules for senior leaders, together with a copy of the training content.

Standard 2 – Culture

Organisations and businesses foster a culture that is safe, respectful and inclusive and values diversity and gender equality.

• The organisation/business pays particular attention to gender balance and diversity in recruitment.
• The organisation/business attempts to increase the representation and workplace inclusion of underrepresented groups.
• The organisation/business consults with workers (and their representatives, where applicable) on workplace issues concerning gender equality, diversity and inclusion. It gives particular attention to the voices and experiences of workers who have lived experience of gender inequality and intersecting inequalities.

Leaders and managers at all levels role model respectful behaviour (both in interactions with workers and others such as customers, clients and patients, where applicable).

• Leaders and managers use respectful and inclusive language.
• Leaders and managers call out disrespectful behaviour (including behaviour of third parties).

Leaders and managers at all levels regularly and clearly communicate to workers their expectations about respectful behaviour; that relevant unlawful conduct is unacceptable; and the consequences for engaging in relevant unlawful conduct.

• Leaders and managers regularly communicate expectations to workers in person, through induction, team meetings and ‘toolbox talks’.
• Leaders and managers ensure that these messages are reinforced in writing, such as through emails, posters, notices or brochures in the workplace; policies, organisational values or strategies that are published and promoted internally; workers’ contracts, codes of conduct and the intranet.

Respectful behaviour, and actions taken to foster a safe and respectful workplace, is encouraged and rewarded, including through HR processes.

• Individual workers are given recognition when they engage in positive behaviours that reinforce values of equality, diversity, inclusion, respect and safety.
• Leaders, managers and all workers call out positive behaviours in staff meetings.
• The organisation/business has staff awards for positive behaviour.
• Contribution to a positive workplace culture is valued in performance assessments and the consideration of promotions.

Leaders and managers take action to ensure that online working environments are safe and respectful.

• Leaders and managers moderate the chat function in online meetings and remove disrespectful and discriminatory content.
• Leaders and managers educate workers on acceptable, respectful and safe online behaviours.

The culture of the organisation/ business empowers workers (including leaders and managers) to report relevant unlawful conduct; minimises harm; and holds people accountable for their actions.

• The role of all people in the workplace for creating a positive workplace culture is openly discussed in team meetings and reflected in relevant policy documents.
• Workers are encouraged to call out disrespectful behaviour when they see it.
• Workers attend bystander training. Note: Encouraging bystanders to take action does not replace accountability on the part of leaders for preventing and responding to relevant unlawful conduct

Leaders and managers at all levels hold people accountable for their conduct and encourage workers to do the same.

• Workers (including leaders and managers) call out disrespectful comments (for example, ’everyday sexism’).
• Workers (including leaders and managers) refuse service or entry to customers or clients who engage in relevant unlawful conduct.
• Leaders and managers have discussions with workers who engage in disrespectful behaviour or relevant unlawful conduct.
• Leaders and managers ensure that appropriate disciplinary processes are implemented, and consistent and proportionate consequences applied, for workers who engage in relevant unlawful conduct.
• Leaders and managers ensure that people who engage in relevant unlawful conduct are not protected, rewarded or promoted (including leaders and managers at all levels, workers and third parties such as ‘high value’ customers or clients).

Records to demonstrate actions taken to meet Standard 2 might include:

• correspondence with workers and meeting notes, feedback from workers, exit interviews and results of surveys of workers and associated actions
• written materials such as posters, notices and brochures
• induction manuals, organisational values, codes of conduct, workers’ contracts and job descriptions, as well as incentive plans/bonus structures, performance and development plans, recruitment and promotion processes
• notes from consultations with worker networks and diversity groups and associated actions

• data on gender equality and workplace diversity and associated actions
• gender equality, diversity and inclusion strategies, targets and associated performance metrics
• evidence of the taking of ‘special measures’ to further substantive equality.

Standard 3 – Knowledge

Organisations and businesses develop, communicate and implement a policy regarding respectful behaviour and unlawful conduct. A policy regarding respectful behaviour and unlawful conduct is developed, communicated to workers, consistently followed and regularly reviewed to make improvements (in consultation with workers and their representatives, where applicable).

• The policy and associated HR processes outline obligations and set standards regarding respectful behaviour; clearly provide that relevant unlawful conduct is unlawful and unacceptable; provide information about reporting and detail the consequences for engaging in relevant unlawful conduct. Recommended content to be included in the policy is set out below in section 6.3(c). For most organisations/businesses, this policy should be in writing. A template policy is linked in Appendix 1.
• The policy is communicated to workers through position descriptions, contracts, induction processes, education and training, emails, codes of conduct and notice boards.
• The policy is regularly reviewed, for example, annually or after a significant incident

Organisations and businesses support workers (including leaders and managers) to engage in safe, respectful and inclusive behaviour through education. Workers are educated about expected standards of behaviour, including actions and attitudes that foster equality and respect. They are also educated about behaviours that constitute relevant unlawful conduct. The education is directed at achieving behavioural and attitudinal change and includes informing them that these behaviours are unlawful and unacceptable, as well as, the consequences for engaging in such conduct. Workers are educated about their rights and responsibilities in relation to safe, respectful and inclusive workplaces and working relationships. This includes their role in preventing and responding to relevant unlawful conduct.

• Education includes formal training or learning, supplemented by ongoing learning opportunities and written materials. The Commission’s factsheet on Effective Education and Training is linked in Appendix 1.
• Education is provided with a trauma-informed approach, given the sensitivity of the topics. This involves considering the potential impact that discussion of these topics can have on individuals, ensuring that appropriate support is available.
• Education is tailored to specific roles and responsibilities (such as workers, leaders and managers, senior leaders, board members, HR staff and those with responsibility for receiving and managing reports of relevant unlawful conduct).

Leaders, managers and workers are provided with easy access to information about relevant unlawful conduct, the consequences for engaging in that conduct and where to seek support.

• Information is included in posters, brochures, factsheets and written policies, including translated materials where available. Free resources and samples are linked in Appendix 1.

• Information is accessible during and outside business hours (for example, on the intranet or in information sheets that workers can take home).

Records to demonstrate actions taken to meet Standard 3: Knowledge might include:

• attendance records for training sessions or modules, together with a copy of the training content
• written policies and processes, such as an Appropriate Workplace Behaviour policy or Respectful Workplace Behaviour policy (addressing appropriate behaviour and relevant unlawful conduct) and reporting procedure
• notes and agendas from meetings with workers and ‘toolbox talks’
• position descriptions, work plans and performance development frameworks with mandatory learning requirements
• educational materials that have been made available to workers, leaders and managers
• feedback from workers or engagement survey data to demonstrate the level of understanding of relevant unlawful conduct, as well as attitudes towards such conduct.

Standard 4: Risk management

Organisations and businesses recognise that relevant unlawful conduct is an equality risk and a health and safety risk. Senior leaders treat relevant unlawful conduct as an equality risk, a health and safety risk and a legal risk.

• Organisations and businesses ensure that senior leaders (including business owners) are actively involved in, and responsible for, the risk management process relating to relevant unlawful conduct. Senior leaders (including business owners for small organisations/businesses, and the board or equivalent and Chief Risk Officers in larger organisations/businesses) actively seek out, and are regularly provided with, information about:
  • the risks, nature and extent of relevant unlawful conduct in the organisation/business
  • actions taken to prevent and respond to relevant unlawful conduct
  • outcomes of reports of relevant unlawful conduct and consequences for people who engage in relevant unlawful conduct
  • trends, patterns and lessons learned.
• Organisations and businesses establish, support and train personnel in the workplace with a specific mandate to address relevant unlawful conduct.
• Organisations and businesses regularly review industry-relevant WHS guidance, including approved Codes of Practice which set out what is reasonably practicable to manage hazards, such as sexual harassment, under WHS laws.
• Organisations and businesses create written records evidencing the risk management process undertaken. See further guidance at section 6.4(c) below about how a risk

management process might be recorded in organisations/businesses of varying sizes. A sample risk management tool is linked in Appendix 1.

Organisations and businesses regularly consult workers, their representatives (where applicable) and other relevant stakeholders (including any organisations/businesses with a shared responsibility for workers).

• Organisations and businesses consult workers and their representatives (where they have them) in relation to when and where workers are at risk (including the likelihood, duration and frequency of risks), proposed control measures and the effectiveness of control measures. For information on what makes consultation effective, see section 5.1.
• In a small organisation/business, this might include conversations with workers about the risk of relevant unlawful conduct and the response of the organisation/business.
• Organisations and businesses consult with other relevant stakeholders.
  • This may include conversations about relevant risks with organisations/businesses which have a shared responsibility for workers and which will implement agreed upon control measures.
• Consultation is conducted regularly. This includes when proposing changes to the work or work environment; when new or changed risks are identified; following any incidents (to assist with identifying why the incident occurred and how the risk could be better managed in future); and otherwise annually.

Organisations and businesses take a risk-based approach to prevention and response. Organisations and businesses regularly identify and assess the risk of relevant unlawful conduct occurring (including the impact that it might have on the health and safety of those affected), in consultation with workers (and any representatives) and other stakeholders.

• Organisations and businesses use a range of sources of information to consider when, where and how relevant unlawful conduct may occur, and who may engage in it (including third parties).
• In a small organisation/business, this might include:
  • identifying industry characteristics that may affect its workforce and reviewing industry data on rates of relevant unlawful conduct – see Information Guide, section 10, ‘How common is relevant unlawful conduct?’
  • when a report of relevant unlawful conduct is made, monitoring to identify any signs that may indicate evidence of victimisation (for example, high levels of absenteeism or personal leave, or reduced performance) and discussing these with the workers involved
  • collecting and evaluating relevant data and using it to inform risk assessment – see Standard 7: Monitoring, evaluation and transparency for further guidance.

Organisations and businesses implement effective control measures to address the identified risks.

• Organisations and businesses implement control measures that may:
  • Relate to the physical working environment to reduce the risk of workers and third parties in the workplace experiencing relevant unlawful conduct – such as installing security cameras and providing duress alarms.
  • Involve changes to work methods and procedures to minimise the risk of relevant unlawful conduct. This may include, for example, rostering two people on in a shop in the evening, if there is evidence of an increased risk to workers during this time.

Examples of other, more specific, possible control measures are set out in Appendix 3.

• Workers are provided with necessary education, training or instruction to implement the control measures. For example, if a control measure for an organisation/business that provides in-home services is that two workers conduct initial in-home care visits together to assess the risks, workers are provided with information and training on how to do this.
• Organisations and businesses review relevant WHS guidance on control measures. This may include, for example, Safe Work Australia’s Model Code of Practice for Managing Psychosocial Hazards at Work and Preventing Workplace Sexual Harassment Guide.

Organisations and businesses regularly review control measures to determine whether they remain effective and appropriate in controlling identified risks and to make any necessary changes where required.

Records to demonstrate actions taken to meet Standard 4: Risk management might include:

• correspondence with workers and meeting agendas and notes
• a completed risk framework and/or risk register (or other evidence of a risk identification and assessment, as well as implementation and review of relevant control measures)
• exit interviews, survey results or notes from consultations with workers (and their representatives) and actions taken in response
• position descriptions for roles such as contact officers, health and safety committees and representatives
• analysis of data relating to relevant unlawful conduct, including reporting figures and gender equality indicators
• board papers and minutes
• documented control effectiveness testing and evaluation.

Standard 5: Support

Organisations and businesses ensure that appropriate support is available to workers (including leaders and managers) who experience or witness relevant unlawful conduct. Internal support options are available. These are confidential and prioritise the affected person’s safety and wellbeing. External support options are available. These can be accessed anonymously or without disclosure to the organisation/business.

• Internal support options are made available to workers. In a small organisation/business, internal support options might include the owner, a trusted senior worker, a health and safety representative or a union delegate.
• External support options are made available to workers. In a small organisation/business, external support options might include 1800 RESPECT, the worker’s GP, a counsellor, or a union representative.

Support, prioritise safety and minimise harm, by being person- centred and trauma-informed

• When a report of relevant unlawful conduct is made, workers’ safety and support for the worker is considered first, ahead of the formal reporting and disciplinary processes of the organisation/ business. This means that:
  • The worker who reports the conduct is asked what support they would like from the organisation/business.
  • Consideration is given to the worker’s leave arrangements and any temporary changes to working arrangements or other reasonable adjustments (considering the worker’s wishes). This could include, for example, providing safe alternative work while a reporting process or investigation is ongoing.

Workers are informed about the available support, and can access the support, regardless of whether they report the conduct. Information about support options is easily accessible to workers (both while at work and when at home) and is able to be understood. Support is available for workers regardless of whether they report the relevant unlawful conduct.

• An information sheet is given to workers when they first start work. A list of external support options that can be provided to workers is linked in Appendix 1.
• Posters, flyers and other information about support options are displayed in the workplace, with copies made available for workers to take home.
• An email with relevant links is provided to workers, with permission to forward to their personal email accounts.
• It is expressly stated in relevant materials that support will be offered to workers even if they choose not to make a formal report about the conduct that they have experienced or witnessed.

When a report is made, support is available during the reporting and response process, as well as after it has concluded

• Workers who choose to make a report are provided with a nominated contact person with whom they can discuss any concerns (including about victimisation). Wherever possible, this contact person is independent from people responsible for managing reports of relevant unlawful conduct and making decisions about outcomes.
• Workers can continue to access support after a reporting and response process has concluded. This is to support their wellbeing, the restoration of working relationships and to assist with career progression (to ensure that their career prospects are not impeded and that they do not experience victimisation or other adverse consequences).

Records to demonstrate actions taken to meet Standard 5: Support might include:

• written materials such as posters, brochures, information sheets or emails setting out available support options
• attendance records for training sessions that include support options, associated training content and evaluation of training content by participants
• evidence of supports offered and provided in individual cases, such as emails to workers or notes of conversations
• inclusion in staff surveys of questions about knowledge of and access to supports
• EAP details and data about the number of times the EAP service is accessed by workers.

Standard 6: reporting and response

Organisations and businesses ensure that appropriate options for reporting and responding to relevant unlawful conduct are provided and regularly communicated to workers and other impacted people. Workers and third parties (such as clients, customers and patients) are provided with information about their reporting and resolution options, including without the need to speak to anyone.

• Appropriate information is communicated to workers. Communication might include an information sheet when starting work, posters and flyers in the workplace (and in a form that people can take home), regular discussions at appropriate forums (such as meetings with workers and their representatives), a written policy or procedure, emails to workers or information on a staff intranet. Information should be accessible to workers to access, without the need to speak with anyone within the organisation/business.
• Appropriate information is communicated to third parties. Communication might include posters in the workplace stating that relevant unlawful conduct is unlawful and unacceptable and what they can do if a worker engages in relevant unlawful conduct. See example signage linked in Appendix 1. It might also include information in emails or on a website stating that they have a right to receive a service that is free from relevant unlawful conduct and options for reporting.

There are multiple options for reporting relevant unlawful conduct, including internal and external options

• In a small organisation/business, this might include an option to report internally to a nominated person and/or to obtain information about how to contact relevant external bodies (such as the Australian Human Rights Commission, the Fair Work Commission, the Fair Work Ombudsman, WHS regulators and state and territory anti-discrimination bodies).

Note – safe reporting might mean reporting externally (particularly in a small organisation or business, due to its size) and people should not be required to report internally first.

There are options for reporting informally or formally, verbally or in written form, as well as anonymously.

• In a small organisation/business, anonymous reporting might be through an anonymous feedback box.

Reporting processes are safe and confidential (which includes being person-centred and trauma-informed).

• A person who experiences relevant unlawful conduct is given a choice about whether to make a formal report and how they do so. Their preferences for how the conduct should be dealt with are considered, while also balancing relevant legal duties (such as the duty to take reasonable and proportionate measures to eliminate relevant unlawful conduct, as far as possible, and WHS duties).
• People handling reports have appropriate knowledge and skills. This may include, for example, by reading these Guidelines or being educated in how to receive and manage reports of relevant unlawful conduct in a person-centred and trauma-informed way. For further information see the Commission’s factsheet, Trauma-informed and Person-centred Approaches to Safe and Respectful Workplaces, linked in Appendix 1.
• Workers and third parties (such as customers, clients and patients) can lodge a report after their workplace relationship or interaction with the organisation/business has concluded.
• A clear process exists for making and handling reports about senior leaders (including board members where relevant), developed in consultation with workers.
• Processes consider the demographics of the workforce, the working environment and the needs of workers (particularly those at higher risk of experiencing relevant unlawful conduct). See Information Guide, section 9, ‘Who is most at risk?’

Reporting processes are regularly reviewed for effectiveness.

• Workers are consulted in relation to reporting processes (for example, annually or following any significant reports).
• Reviews consider data relating to reporting processes, including outcomes of reports for individuals and the organisation or business. See Standard 7: Monitoring, evaluation and transparency.

Responses to reports of relevant unlawful conduct are consistent, timely, and minimise harm to people involved. Appropriate options for resolving reports of relevant unlawful conduct are available and a consistent approach is taken to responding.

• Multiple pathways for resolving reports of relevant unlawful conduct are available. Pathways include early intervention and both formal and informal resolution options. For more information relating to sexual harassment, see ‘Resolution pathways’ on the Respect@Work website, linked in Appendix 1.
• The importance of the person alleged to have engaged in the conduct (such as their level of seniority, ability to bring in revenue for the organisation/business, or their value as a client) does not impact on the response.

Note: While an organisation/business should consider any relevant legal obligations in relation to the conduct of investigations and disciplinary procedures (for example, under an enterprise agreement), the approach to responding to reports of relevant unlawful conduct should not be influenced by the perceived importance of the people involved.

• External referral options for the investigation and management of reports are used when needed for impartiality (for example, when the organisation/business is too small, or a conflict of interest cannot be appropriately managed internally). External referral, reporting and resolution options may include the Australian Human Rights Commission, the Fair Work Commission, the Fair Work Ombudsman, WHS regulators and state and territory anti-discrimination bodies. For larger organisations/businesses, external referral options might include a specialist investigator or a law firm with specialist skills and training.

Responses to reports minimise harm by being person-centred and trauma informed.

• Safety and wellbeing is prioritised, rather than the reputation of the organisation/business or a focus on immediately starting a formal disciplinary process.
• Processes recognise the impact of trauma and support the affected person’s choice and control over the process, as far as possible.
• Processes allow the person to tell their experiences in their own words, and minimise the need to tell it multiple times and to multiple people.
• The affected person can stop or withdraw from the process at any time.
• The affected person has a clear understanding of the timeframes and decision points. They receive regular updates.

Consequences are consistent and proportionate. A variety of outcomes are considered, including sanctions or disciplinary action, as well as corrective actions targeted at behavioural and systemic change.

• Consequences are applied consistently regardless of the alleged perpetrator’s role in an organisation. For example, it is inappropriate for a senior person who brings in a lot of income to the organisation/business to be given a warning, while a junior person’s employment is terminated for the same conduct.
• Sanctions or disciplinary outcomes exist along a scale of seriousness and might include an apology, ongoing monitoring, verbal/written warnings, suspension, barriers to pay increases, impact to bonus, barriers to promotion, demotion or dismissal.
• Corrective actions targeted at behavioural and systemic change may include coaching training, addressing culture, the consequences for work opportunities and promotions, or addressing power imbalances.

Wherever possible, outcomes are communicated to relevant parties (and more broadly in a general or de-identified way).

• Privacy obligations are considered on a case-by-case basis and not applied as a blanket reason for not communicating outcomes. Competing interests are fairly and carefully balanced, with particular consideration given to the wellbeing and safety of the person who experienced the conduct.
• For further guidance, see the Champions of Change Coalition’s, Sexual Harassment: A Guide to Confidentiality and Transparency, linked in Appendix 1.
• People who report relevant unlawful conduct are not required to commit to blanket confidentiality obligations. For further information relating to sexual harassment, see the

Respect@Work Council’s Guidelines on the Use of Confidentiality Clauses in the Resolution of Workplace Sexual Harassment Complaints, linked in Appendix 1.

Records to demonstrate actions taken to meet Standard 6: Reporting and response might include:

• posters or brochures setting out reporting options and possible response pathways and outcomes
• a written procedure or policy for reporting relevant unlawful conduct
• outcomes of reviews of processes and systems for reporting and responding to incidents
• outcomes of consultation with workers, or surveys regarding workers’ perceptions of the reporting and response processes
• data maintained regarding reports, including the response taken and the outcome (kept confidentially and securely stored).

Standard 7: Monitoring, evaluation and transparency

Organisations and businesses collect appropriate data to understand the nature and extent of relevant unlawful conduct concerning their workforce. Data is collected to assist in the identification and assessment of the risk of relevant unlawful conduct, as well as in the development of appropriate measures to prevent and respond to it.

• Data may be collected in relation to leadership, culture, worker knowledge, risks arising from specific industry and workplace characteristics, support options, reporting and response processes.
• Data may be collected from workers, including through an anonymous feedback box, consultation with workers (and their representatives) including interviews and focus groups, surveys and exit interviews. For guidance on developing survey questions, see Our Watch’s Workplace Equality and Respect: People Survey Tool, linked in Appendix 1.
• Data may be collected from third parties, including by reviewing comments on social media and customer feedback.
• Data may be collected using workforce statistics, such as worker turnover rates, rates of absenteeism and use of sick leave, and rates of access to flexible working arrangements and parental leave across all genders.
• ‘Knowledge checks’ can be conducted to test workers’ understanding of relevant unlawful conduct and workplace expectations. In a smaller organisation/business, this may involve informal discussions with workers.

Organisations and businesses use the data they collect to regularly assess and improve the work culture, as well as to develop measures for preventing and responding to relevant unlawful conduct. Measures implemented to address relevant unlawful conduct (including support options and reporting and response processes) are regularly reviewed to ensure that they remain effective.

• Organisations and businesses regularly review their measures for eliminating relevant unlawful conduct (including specific control measures and their ‘prevention and response plan’) to ensure that they remain effective.
• In a smaller organisation/business, this might include asking and responding to the following questions: Are there strategies for preventing and responding to relevant unlawful conduct in place? How do we know if they are effective? Are they updated following an incident of relevant unlawful conduct or when circumstances change? Are people who engage in relevant unlawful conduct being held accountable?
• Evaluation is undertaken with the input of workers and other relevant stakeholders.
• Evaluation is informed by the data that is collected.
• Measures to eliminate relevant unlawful conduct are updated following any evaluation to ensure continuous improvement.

Organisations and businesses are transparent about the nature and extent of reported behaviours that could constitute relevant unlawful conduct concerning their workers and actions taken to address it. Leaders (including the board or equivalent), managers, workers and other relevant stakeholders receive information on the nature and extent of relevant unlawful conduct in the organisation/business, as well as actions taken to prevent and respond to it.

• Relevant data is shared with senior leaders to inform the ‘prevention and response plan’ and ensure effective governance. See Standard 1: Leadership for more information.
• Case studies and information about incidents, associated lessons (including themes of harmful behaviours) and progress over time are shared with leaders, managers and workers. This information could be communicated through team meetings or ‘toolbox talks’ and supplemented by internal emails, sent on an annual basis or post-incident, acknowledging any issues and reiterating that relevant unlawful conduct is unacceptable.

Note: Before sharing information, the wishes of the affected person should be considered. Any information should be appropriately de-identified to protect the privacy of the affected person (unless they provide their consent to be identified). The privacy of others including witnesses, bystanders and the person who engaged in the conduct should also be considered when de-identifying the information. De-identified case studies may not be appropriate in small organisations/businesses because affected people may be easily identifiable even if they are not named.

Records to demonstrate actions taken to meet Standard 7: Monitoring, evaluation and transparency might include:

• notes of reflections undertaken
• meeting notes of consultation conducted with workers, survey results, feedback, exit interviews and associated analysis
• feedback from third parties and associated analysis
• notes illustrating assessment of reports of relevant unlawful conduct
• business data/metrics and associated analysis

• reporting registers
• a revised ‘prevention and response plan’, or other evidence of an assessment of measures to eliminate relevant unlawful conduct, in response to a review of the data and information collected.

99. The above extract from the Guidelines demonstrates the extent of the compliance burden that has been imposed on small employers in relation to satisfying the positive duty. We reiterate that the expectations are even greater for medium and large employers. This is extremely confusing and highly problematic for employers and is not what appears to have been intended by the legislators. The cost of compliance with the Guidelines, for those organisations that are capable of doing so, are very significant.

100. The lack of consistency in terms of what is required for compliance with the positive duty under the Sex Discrimination Act becomes even more difficult when we consider the legal status of the Guidelines. Noting the AHRC expects compliance, there is no clarity as to the extent that the courts will have regard to the Guidelines in determining whether a business or organisation has complied with the positive duty.

101. We also note that approved WHS Codes of Practice are approved by the relevant Minister after consultation and published as legislative instruments. In some cases, model WHS Codes that are developed by Safe Work Australia and are adopted by the states or territories. By contrast, the AHRC Guidelines were developed by the AHRC without any ministerial intervention and are then also enforced by the AHRC through its compliance and enforcement function.

102. In addition, employers are beginning to experience an increasingly interventionist approach by the Fair Work Ombudsman (FWO) in relation to the prohibition of sexual harassment under the Fair Work Act. The FWO is additionally undertaking compliance and enforcement activities against employers that fail to take ‒all reasonable steps‒ in relation to sexual harassment in the workplace. The FWO appears to be considering the Guidelines in relation to the positive duty as being relevant to whether employers have in fact taken ‒all reasonable steps‒. This exacerbates the difficulties caused by the Guidelines.

103. In identifying the apparent deviation between the realities of the AHRC implementation of the positive duty through the Guidelines and what appears to be the parliament’s intent we are seeking to highlight the risks of complexity and burden that can flow from the positive duty. We nonetheless unreservedly acknowledge the significant and commendable work the AHRC has done and continues to do in order to support employers to implement their articulation of the positive duty and its requirements. We do however want to avoid adding to the minefield of existing obligations under discrimination laws by, for example, creating a further positive duty under the DD Act.

104. Ultimately, the introduction of the positive duty has placed a significant and problematic regulatory burden on employers who are now required to:

- satisfy separate but overlapping positive duties, including under the Sex Discrimination Act and WHS laws;

- satisfy obligations to take ‒all reasonable steps‒ under the Fair Work Act to avoid vicarious liability (and similarly so under all anti-discrimination laws);
- manage intervention by very active regulators; and
- navigate what has become an extremely unclear and confusing compliance framework.

105. Our members consistently tell us that this is very difficult to navigate. We ask that the Attorney General takes this into consideration and not further exacerbate the burden by imposing a further positive duty in the context of the DD Act.

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

106. We do not support the introduction of a positive duty.

107. The introduction of a positive duty is unwarranted as the DD act as drafted operates to achieve the same aim, being to eliminate discrimination. This is reinforced by the concept of reasonable adjustments and disability action plans.

108. Further, the introduction of a positive duty will risk increasing the regulatory burden on duty holders for very little gain, noting the experience in relation to the positive duty under the Sex Discrimination Act, including as set out above. It is also likely to confuse duty holders about their obligations and create unnecessary complexity and regulatory burden. We refer the Attorney General to our comments in relation to the positive duty under the Sex Discrimination Act as set out above.

109. As discussed below, we also suggest the Attorney General has regard to the existing positive duty under WHS laws to deal with behaviours such as discriminatory conduct, bullying and harassment more generally. Creating further separate and overlapping duties in respect of a particular attribute, such as disability, is unwarranted.

13. Are there lessons from the operation of the positive duty in the Sex Discrimination Act that could be incorporated into a positive duty in the Disability Discrimination Act??

110. We refer the Attorney General to our submissions set out above and emphasise our submission that a positive duty should not be incorporated in the DD Act.

14. What costs, benefits and other impacts would duty holders experience in meeting a positive duty under the Disability Discrimination Act? If you are an existing duty holder under the Disability Discrimination Act, please specify how you think meeting a positive duty would impact you.

111. Based on our members’ experience with the positive duty under the Sex Discrimination Act, the introduction of a positive duty under the DD Act would impose a significant and unnecessary regulatory and compliance burden on businesses and organisations, and we do not support it.

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

112. As set out above, we do not support the introduction of positive duty.

113. If despite our clear opposition, the Attorney General was to recommend the introduction of a positive duty, it is essential that further input is sought from industry stakeholders such as Australian Industry Group so that it is appropriately limited to minimise the compliance burden on employers.

Part 4 – Encouraging inclusion of people with disability in employment, education and other areas of public life

16. Would the creation of a stand-alone duty to provide adjustments better assist people with disability and duty holders to understand their rights and obligations?

114. No.

115. The current approach, under which the duty to make reasonable adjustments is part of the indirect discrimination test, is sufficient.

116. It is also important to recognise that while an implicit duty to make reasonable adjustments flows from the tests for indirect discrimination, the duty as it currently stands is not a standalone duty for which additional claims may be pressed. The imposition of an additional or separate type of discrimination flowing from a positive duty to make reasonable adjustments beyond would be extremely burdensome on employers and would potentially expose employers to a raft of additional claims.

17. Should the scope of the duty to provide adjustments apply only to the existing areas of public life covered by the Disability Discrimination Act, or extend to other contexts

117. It is unclear what is being proposed and the extent to which it would apply to the workplace.

118. As a general response, we do not support this extension. We would envisage that any extension to private life would be impractical and unworkable for employers.

18. Would removing the word ‘reasonable’ from the term ‘reasonable adjustments’ to align the language with the legal effect create any unintended consequences?

119. Yes.

120. Removing ‘reasonable’ could create confusion and the perception by duty holders and employees that all adjustments must be made, regardless of cost or practicality.

121. Given that the Issues Paper acknowledges the courts have an understanding of how the provision operates in its current state, we do not see the justification for making a change. Any change creates an unnecessary risk that a change of legal consequences, including to increase the regulatory and compliance burden on employers.

122. The current test, with the unjustifiable hardship exception, is appropriate and should be retained.

19. What is your preferred approach to achieving greater fairness and transparency in claims of unjustifiable hardship:

a. the Disability Royal Commission amendment as proposed b. a new definition of unjustifiable hardship c. other

Please expand on your response.

123. The current approach, which requires consideration of all relevant circumstances, is appropriate.

124. Additional prescribed requirements for consultation or documentation would increase the administrative burden for employers without clear benefit for employees.

125. We ask the Attorney General to consider the fact that members have already have consultation obligations under other workplace laws which mean in practice that discussions around reasonable adjustments for disability take place and are documented. For example, in the context of requesting flexible working arrangements under the Fair Work Act on the ground of disability.

126. We also refer the Attorney General to our general submissions set out in Part 1 of this submission.

127. Introducing any further obligations will inevitably increase the regulatory and compliance burden for employers without any clear benefit for workers.

128. We suggest consideration should instead be given to the implementation of measures that will assist employers in achieving compliance. This could include greater resources being allocated to measures that facilitate education about existing obligations and measures or mechanisms that employers can implement to support compliance.

20. What are your views on amending the Disability Discrimination Act to consider the nature and extent of any adjustments made and encourage consultation between prospective or current employers and prospective or current employees before making employment decisions?

129. We support non-binding practical guidance on how to communication in relation to adjustments, but do not support legislative amendment.

130. Employers already have obligations to consider adjustments and consult with employees and prospective employees under the existing law.

20. Are there other amendments to the Disability Discrimination Act that could support engagement between prospective or current employers and prospective or current employees to better understand the inherent requirements of a job?

131. No.

132. Non-binding practical guidance and education materials would be more effective than legislative amendment. The inherent requirements exemption is well understood and should not be narrowed.

22. Should any other amendments be made to the definition of inherent requirements, including factors that should be considered when deciding whether a person could carry out the inherent requirements of a job?

133. No. The current approach, supported by case law, is sufficient. Additional factors would inevitably increase the regulatory and compliance burden for business, without any clear benefit for employers.

134. We also refer the Attorney General to our submissions in Part 1.

23. Should the concepts of exclusion and exclusionary discipline be defined in the Disability Discrimination Act

24. Should there be exceptions or limits on when exclusion is unlawful?

25. Should any of the state and territory provisions relating to exclusionary discipline be adopted in the Disability Discrimination Act??

26. Would a different approach to exclusionary discipline be more appropriate in the higher education and vocational education and training sectors?

135. The Australian Industry Group does not make submissions in relation to these questions.

Part 5 – Improving access to justice

Harassment and offensive behaviour

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

136. We do not support any amendments.

137. There are already extensive protections for employees against harassment and employers are already subject to substantial duties in this area.

138. Disability harassment is already explicitly prohibited in the DD Act.

139. Also, harassment can constitute direct discrimination in particular circumstances if the harassing conduct is in itself a form of discrimination against the individual in relation to their disability.

140. Victimisation, on the basis of making a compliant, or participating in a process in respect of a complaint in relation to such behaviours is also prohibited.

141. A set of behaviours that may be unlawful ‘harassment’ under the anti-discrimination laws may also be ‘bullying.’ Bullying and harassment are both psychosocial risks under WHS laws. Employers have a positive obligation to eliminate, or minimise, as far as reasonably practicable, the risks in the workplace of harassment and bullying, including by adopting the types of controls discussed in Part 1 of this submission in relation to sexual harassment.

142. Existing provisions, together with WHS and workplace laws, provide sufficiently comprehensive protection. We do not support any further expansion, which would exacerbate problems of complexity as well as generate additional regulatory and compliance burdens for business.

It may however be of assistance for the AHRC to create non-binding practical guidance, with the benefit of input from key stakeholders such as Australian Industry Group.

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

143. We do not support this prohibition as set out above.

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

144. We do not support the prohibition.

145. If despite our opposition, a prohibition was inserted into the DD Act, further intermediate consultation should take place, including in relation to exemptions.

Vilification

30. Given the recent legislative developments, are there any further gaps in the legislative framework that could be addressed by amendments to the Disability Discrimination Act to protect people with disability from vilification?

146. No.

147. Recent amendments to criminal law and other statutes address vilification. Further expansion in the DD Act is unnecessary and would increase the compliance burden for employers without providing any tangible benefit for employees.

31. How could the Disability Discrimination Act be amended to ensure that it covers policing?

148. Australian Industry Group does not make submissions in relation to this question.

32. Are there any specific circumstances or situations relating to policing or justice that should be excluded from the application of the Disability Discrimination Act??

149. Australian Industry Group does not make submissions in relation to this question.

Part 6 – Exemptions

33. Could any of the permanent exemptions be narrowed or updated, while balancing other policy considerations?

150. Exemptions should be retained and, if anything, clarified to provide certainty for employers.

151. We do not support narrowing exemptions as this may exacerbate the regulatory and compliance burden on employers.

34. Should the Australian Human Rights Commission be given the power to grant special measures certificates??

152. Empowering the AHRC to grant special measures certificates may enhance legal clarity and support equality initiatives for employers.

153. However, such a power would require robust safeguards, transparent criteria and must align with other legal obligations in relation to disability, including under the Fair Work Act, WHS laws and state and territory anti-discrimination laws.

154. There is also the risk that this measure could increase compliance costs and delay implementation of initiatives, particularly for smaller employers or community organisations.

155. If the Attorney General supports the giving of this power, further intermediate consultation should take place to ensure that our members’ concerns are adequately addressed.

35. Should a definition for special measures be added to the Disability Discrimination Act??

156. Australian Industry Group generally supports a definition for special measures if it increases legal clarity and supports inclusive practices.

157. However, the definition must not be overly prescriptive or require businesses to produce significant documentation. The definition must also be consistent with other laws, including the Fair Work Act, WHS laws and state and territory anti-discrimination laws. Any definition should be developed in consultation with industry stakeholders.

158. Any change must be supported by the AHRC through guidance materials and template model policies, that are co-designed through consultation with industry stakeholders.

36. Should a definition for temporary exemptions be added to the Disability Discrimination Act??

159. Australian Industry Group would be open to further consultation regarding a definition for temporary exemptions.

160. If a definition was to be added to the DD Act, it must not be overly rigid or lead to additional compliance costs for employers through, for example, extensive documentation requirements.

37. Would you recommend any changes to the legislative process of granting temporary exemptions?

161. Australian Industry Group does not recommend any changes.

Part 7 – Modernising the Disability Discrimination Act

38. How could the protections for assistance animals be clarified for both people with disability and duty holders, including in relation to evidence of training, evidence or standards of hygiene and behaviour that are appropriate for a public place?

162. The Australian Industry Group does not make submissions in relation to this question.

39. Would legislative amendments or guidance materials be helpful to balance flexibility and certainty, or a mixture of both?

163. The Australian Industry Group does not make submissions in relation to this question.

40. Should specific training organisations be prescribed under the Disability Discrimination Regulations?

164. The Australian Industry Group does not make submissions in relation to this question.

41. Should there be minimum requirements for action plans (such as through guidelines) and what should the minimum requirements cover?

165. The Australian Industry Group supports continuing the voluntary approach to disability action plans.

166. The Australian Industry Group notes that section 61 outlines the required content.

167. It is our position that non-binding practical guidelines containing example disability action templates and checklists, scaled according to the size and capability of the relevant employer, would assist employers in identifying what the AHRC might view as compliant in accordance with section 61.

168. The Australian Industry Group does not support mandatory minimum requirements for action plans.

42. Should the Australian Human Rights Commission be able to reject action plans that fail to meet these requirements??

169. The Australian Industry Group does not support the AHRC being empowered to reject action plans.

170. The Australian Industry Group supports the current encouragement framework of disability action plans that is based on goodwill and voluntary participation by employers.

171. As set out above, mandatory requirements may increase compliance costs for business and discourage voluntary submissions of disability actions as well as business innovation.

172. If, despite our submissions, the AHRC was to introduce minimum requirements it could consider applying a tiered endorsement system. This could rate or endorse action plans by reference to the guidelines, rather than rejecting them. This may incentivise excellence without penalising compliance.

173. If rejection powers were to be implemented, that should be supported by minimum standards, assessment criteria and an appeal mechanism which will be informed through further consultation with industry stakeholders. The standards that are adopted must be co-designed with employers and must be achievable, scalable and sector specific.

43. Should there be a set period of time for which an action plan is valid?

174. The Australian Industry Group has concerns that set periods of time may be burdensome for some employers, particularly small and medium enterprises and this may discourage voluntary participation.

175. The AHRC could alternatively consider permitting employers to make amendments or updates without have to resubmit their disability action plans.

176. If, despite our concerns, a recommendation was made to provide for validity periods, we recommend that those periods be at least 3-5 years, with an in-built review mechanism permitting the renewal of the action plan without resubmission. We note that there is a risk that set time limits may lead to short-term goals that priorities compliance over systemic change.

177. The AHRC would ideally provide templates and review tools, co-designed with industry stakeholders, that would streamline the renewal of disability action plans and reduce the compliance burden.

44. Are there any other changes to the action plan process that you would recommend?

178. The Australian Industry Group does not recommend any other changes.

45. How could compliance with and enforcement of the Disability Standards be improved?

179. The Australian Industry Group does not support any changes.

46. Should the Disability Discrimination Act be amended to encourage relevant duty holders to self-report on their compliance with the Disability Standard(s) in disability action plans??

180. We do not support any changes to the provisions as they relate to disability actions.

181. We need further detail about the implications of self-reporting non-compliance or compliance.

47. Could the Australian Human Rights Commission provide additional guidance to duty holders regarding how to self-report on the Disability Standards in disability action plans?

182. We have referred throughout this submission to the benefit of additional non-binding practical guidance materials for duty holders such as employers, preferably informed by key industry stakeholders.

183. By way of example, it may assist employers if the AHRC provided template examples of what it might view as being best practice disability action plans.

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

184. We have not identified examples. We refer to our submissions which generally do not support amendments but are in favour of further non-binding practical guidance.

49. What additional guidance materials should be provided to the community, including duty holders, about the operation of the Disability Discrimination Act or specific amendments proposed in this paper?

185. We have referred throughout this submission to the benefit of additional non-binding guidance materials for duty holders such as employers, preferably informed by key industry stakeholders.

50. How can we ensure the Disability Discrimination Act remains fit-for-purpose into the future?

186. We have referred throughout this submission to the benefit of additional non-binding guidance materials for duty holders such as employers, preferably informed by key industry stakeholders.

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

187. We are not aware of other issues but emphasise again the benefit of additional non-binding guidance materials for duty holders such as employers, preferably informed by key industry stakeholders

About Australian Industry Group

Ai Group and partner organisations represent the interests of more than 60,000 businesses employing more than 1 million staff. Our membership includes businesses of all sizes, from large international companies operating in Australia and iconic Australian brands to family-run SMEs. Our members operate across a wide cross-section of the Australian economy and are linked to the broader economy through national and international supply chains.

Our purpose is to create a better Australia by empowering industry success. We offer our membership strong advocacy and an effective voice at all levels of government underpinned by our respected position of policy leadership and political non-partisanship.

With more than 250 staff and networks of relationships that extend beyond borders (domestic and international), we have the resources and expertise to meet the changing needs of our membership. We provide the practical information, advice and assistance you need to run your business. Our deep experience of industrial relations and workplace law positions Ai Group as Australia’s leading industrial advocate.

We listen and we support our members by remaining at the cutting edge of policy debate and legislative change. We provide solution-driven advice to address business opportunities and risks.

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