NDIA Accountability Project

Submission — Review of the Disability Discrimination Act 1992 (Cth)

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Acknowledgement of Country

Anti-Discrimination NSW acknowledges the Traditional Custodians of the lands where we work and live. We celebrate the diversity of Aboriginal peoples and their ongoing cultures and connections to the lands and waters of NSW.

We pay our respects to Elders past, present and emerging and acknowledge the Aboriginal and Torres Strait Islander people that contributed to the development of this document.

Submission – Review of the Disability Discrimination Act 1992 (Cth)

Published by Anti-Discrimination NSW

antidiscrimination.nsw.gov.au

First published: November 2025

© State of New South Wales through Anti-Discrimination NSW 2025. Information contained in this publication is based on knowledge and understanding at the time of writing and is subject to change.

Contents

Submission to the Review of the Disability Discrimination Act 1992 (Cth)

Thank you for the opportunity to respond to the Review of the Disability Discrimination Act 1992 (Cth) (DDA) Issues Paper (the Issues Paper).

About Anti-Discrimination NSW

ADNSW administers the Anti-Discrimination Act 1977 (ADA) which makes it unlawful to discriminate in specified areas of public life against a person on certain grounds. Sexual harassment, as well as vilification on the grounds of race, transgender status, homosexuality, HIV/AIDS and religion is also unlawful.

ADNSW also administers the civil complaints scheme in the Conversion Practices Ban Act 2024 (NSW) (CPBA) which prohibits conversion practices that are directed to a person to change or suppress the person’s sexual orientation or gender identity.

ADNSW works to eliminate discrimination in NSW by:

  • answering enquiries
  • resolving complaints
  • raising awareness about discrimination and its impacts
  • managing applications for exemptions from the ADA
  • advising the government about discrimination issues
  • administering the civil complaints scheme under the CPBA.

Protections based on disability in the ADA

Part 4A of the ADA protects against discrimination based on someone’s disability, or the disability of their relative or associate. The ADA provides a similar definition of ‘disability’ as in the DDA:

(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or (b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person’s body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.^[1]

^[1] Anti-Discrimination Act 1977 (NSW) s 4(1) definition of “disability”.

Under the ADA, disability discrimination is unlawful in certain public areas of life including work, accessing goods and services, education, accommodation, industrial organisations, qualifying bodies and in registered clubs.

The ADA is currently under review by the NSW Law Reform Commission (NSW LRC) which released its first consultation paper in relation to the review on 20 May 2025. In its consultation paper (which is available on the NSW LRC website), the NSW LRC proposed several options for reform of the disability discrimination provisions in the ADA. ADNSW made a submission in response to the consultation paper (which will be available on the NSW LRC and ADNSW websites soon).

ADNSW Response to the Issues Paper

ADNSW would like to respond to the following questions raised in the Issues Paper – 5, 6, 7, 16, 19, 20, 27, 28, 29, 30 and 38. Due to the overlapping and complex framework of anti-discrimination and human rights laws across Australian jurisdictions, ADNSW supports consistency where possible to better support people with a disability who experience discrimination. Inconsistent laws across jurisdictions make it difficult for people to navigate the complaints process and to choose the most appropriate avenue in which to make a complaint. Therefore, many of the points put forward in this submission reflect ADNSW’s views expressed in its submission to the NSW LRC to amend the ADA, and ADNSW supports harmonising laws to strengthen protections and promote access to justice.

Amending the definition of direct discrimination

Question 5 asks 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.

ADNSW considers that replacing the comparator test with a detriment test (unfavourable treatment test) is preferable to ensure the definition of direct discrimination is more easily understood and applied by both duty holders and people with disability.

Although the DDA was amended in 2009 following the Purvis decision^[2] to clarify that disability includes behaviour that is a symptom or manifestation of the disability, the comparator test continues to present challenges and remains difficult to apply. This is because identifying an appropriate comparator can be difficult, and commentators have raised several concerns about the application of this test.^[3]

^[2] Purvis v New South Wales [2003] HCA 62; 202 ALR 133.

^[3] See, eg, Colin D Campbell, ‘A Hard Case Making Bad Law: Purvis v New South Wales and the Role of the Comparator Under the Disability Discrimination Act 1992 (Cth)’, [2007] FedLawRw 4.

As explained in the DDA review, the ACT and Victoria use the detriment test in their definitions of direct discrimination in anti-discrimination law. In 2010, Victoria replaced the comparator test with the detriment test. In 2021, research was conducted by Associate Professor Dominique Allen to assess the impact of this legislative change.

Interviewees, including legal professionals and staff at the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) reported that:^[4]

  • the change had a positive effect;
  • the test had a ‘cleaner’ and more accessible definition;
  • the test was easier to explain to clients; and
  • the test removed some of the artificial complexity of the comparator test.

The detriment test is thought to be simpler to understand and apply than the comparator test. Some other advantages of the detriment test may include that:

  • it does not prevent complainants from presenting their case by identifying a genuine comparator if this will assist in demonstrating unfavourable treatment; and
  • the test focuses on the impact on an affected group, rather than a comparison with a hypothetical group.

As noted above, the ADA is currently under review by the NSW LRC.^[5] Multiple submissions have supported a detriment test in place of a comparator test for this review.^[6] In our submission to the review, ADNSW outlined our support for the introduction of the detriment in the ADA.

Burden of proof

Question 6 of the Issues Paper concerns how the burden of proof should be addressed in the DDA. ADNSW supports adopting a burden of proof model similar to that used in the Fair Work Act 2009 (Cth) (FWA) or the proposed approach recommended in the recent review of Queensland’s anti-discrimination legislation, where the applicant must prove that the treatment occurred and the respondent must prove that the treatment was not based on the person’s disability. This approach appears more balanced and accessible compared to the current model under the DDA.

^[4] Assoc Prof Dominique Allen, ‘An Evaluation of the Mechanisms designed to promote substantive equality in the Equal Opportunity Act 2010 (Vic)’ (2021) 44(2) Melbourne University Law Review, pp. 284 — 287.

^[5] Anti-Discrimination Act Review, Law Reform Commission, https://lawreform.nsw.gov.au/current-projects/anti-discrimination-act-review.html.

^[6] See, eg, Law Society of New South Wales, Review of the Anti-Discrimination Act 1977 (NSW) — Unlawful Conduct (Submission, NSW Law Reform Commission, 2025); Legal Aid NSW, Submission to the NSW Law Reform Commission Review of the Anti-Discrimination Act 1977 (NSW) (Submission, 29 August 2025) https://www.legalaid.nsw.gov.au/; Justice and Equity Centre, Preliminary Submission to the NSW Law Reform Commission Review of the Anti-Discrimination Act 1977 (NSW) (Submission, 13 October 2023) https://jec.org.au/resources/preliminary-submission-to-the-nsw-law-reform-commission-review-of-the-anti-discrimination-act-1977-nsw/.

ADNSW considers that the current burden of proof is widely regarded as too onerous for applicants. It can be difficult for applicants to access direct evidence of a respondent’s motivations or decision-making processes.

Reforming the burden of proof in this way would help address the imbalance of power and resources between complainants and respondents and align the DDA with best practice models, including the recent recommended reforms in Queensland and the burden of proof under the FWA.

ADNSW also echoes the comments made by Associate Professor Simon Rice to the 2008 review of the Sex Discrimination Act 1984 (Cth) (SDA):^[7]

“A complainant must… prove the reason for another person’s conduct, when all knowledge of it is in the mind of the other person, any evidence of it is in the control of the other person, and the power to contradict any allegation is with the other person. A complainant must prove as a fact, on the balance of probabilities, the unarticulated reason for a person’s conduct – a very difficult exercise. This approach to proof often enables a person to avoid accountability for their discriminatory conduct, simply because they are not called on to explain it.”

Amending the definition of indirect discrimination

Question 7 in the Issues Paper concerns how the definition of indirect discrimination could be amended to ensure that it is easy to understand and implement for people with a disability and duty holders. The current definition of indirect discrimination in s 6 of the DDA is often perceived as complex and difficult to apply, creating barriers for both people with disability and duty holders in understanding and applying the law. The current definition of indirect discrimination in the DDA has four elements:

  • A requirement to comply with a condition, requirement or practice;
  • The condition, requirement or practice disadvantages people with disability;
  • The person does not or would not comply, or is not able or would not be able to comply, because of their disability; and
  • The condition, requirement or practice is not indirect discrimination if it is a reasonable requirement, condition or practice (reasonableness element).

The reasonableness element

To ensure the definition of indirect discrimination is easy to understand and implement, it should be simplified, structured clearly, and aligned with the lived experience of people with disability. The current four-part definition of indirect discrimination places a disproportionate

^[7] The Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (December 2008) [6.47].

burden on complainants. The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (DRC) found that the definition of indirect discrimination in the DDA has many layers of exceptions and some of these layers should be removed to ensure that people with disability are properly protected. The current definition of indirect discrimination under the DDA includes a “reasonableness” element that has proved to be complex and difficult to apply in practice. The DRC recommended removing this element, citing duplication with the “unjustifiable hardship” defence and the heavy evidentiary burden it places on complainants.^[8] The approach is also consistent with the United Nations Convention on the Rights of Persons with Disabilities (CRPD).^[9]

ADNSW considers that reform is needed. However, rather than removing the reasonableness element entirely, the DDA should adopt a more structured and transparent approach that provides clarity for complainants, duty holders and courts. Reviews of anti-discrimination laws in other Australian jurisdictions have also favoured retaining the reasonableness element but providing clearer guidance.^[10] In our submission to the NSWLRC in its review of the ADA, ADNSW supported retaining a reasonableness element in the test for indirect discrimination in the ADA. ADNSW also submitted that we support aligning the ADA with other discrimination laws that place the onus on the respondent to prove that a requirement was reasonable.

ADNSW considers that the DDA should set out a non-exhaustive list of factors to be considered when considering reasonableness, similar to the approach in Victoria which explains that consideration of whether a requirement, condition or practice is reasonable depends on all the relevant circumstances, including:

  • the nature and extent of the disadvantage;
  • whether the disadvantage is proportionate to the result sought;
  • the availability and cost of alternatives;
  • financial circumstances of the duty holder; and
  • whether reasonable adjustment could reduce the disadvantage.

The recent reviews of discrimination laws in Queensland^[11] and Western Australia^[12] have recommended including a similar list of factors to promote clarity and reduce uncertainty.

^[8] Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, p. 308.

^[9] Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008), art 2.

^[10] Building Belonging, Review of Queensland’s Anti-Discrimination Act 1991, July 2022, p. 126 - 127, Law Reform Commission Western Australia, Project 111 Final Report, Review of the Equal Opportunity Act 1984 (WA), p. 68.

^[11] Building Belonging, Review of Queensland’s Anti-Discrimination Act 1991, July 2022, p. 127.

^[12] Law Reform Commission Western Australia, Project 111 Final Report, Review of the Equal Opportunity Act 1984 (WA), p. 68.

Similar factors are reflected in some NSW Tribunal decisions dealing with indirect discrimination.^[13] This reform would promote accessibility and fairness for complainants while offering duty holders transparent benchmarks for compliance.

Duty to provide adjustments

Question 16 in the Issues Paper asks whether the creation of a stand-alone duty to provide adjustments would better assist people with a disability and duty holders to understand their rights and obligations.

ADNSW supports the introduction of a stand-alone positive duty to provide adjustments in the DDA. The adoption of a stand-alone duty is consistent with legislation in states and territories including Victoria, the Northern Territory and South Australia. In addition, it is consistent with recommendations made by the Law Reform Commission of Western Australia and the Queensland Human Rights Commission in their law reform processes of anti-discrimination laws, and by the Australian Human Rights Commission (AHRC) in its Free and Equal process.

As noted in the Issues Paper, significant concerns have been raised about the way the law operates in the DDA which includes the duty to provide adjustments in the tests for discrimination.^[14] The effect of the Full Federal Court’s interpretation of the provisions in Sklavos v Australian College of Dermatologists^[15] has weakened the duty and created additional barriers for people with a disability who require adjustments. In Sklavos, the court found that the reason a duty holder does not provide an adjustment must be because of the person’s disability for discrimination to occur under the direct discrimination provisions in the DDA. As a result, the AHRC has indicated its support for amending the DDA to have a positive standalone provision to restore the original intent of the reasonable adjustment provisions.^[16] In our submission to the NSW LRC, ADNSW has indicated our support for the introduction of a stand-alone duty to provide adjustments in the ADA.

Unjustifiable hardship

Question 19 of the Issues Paper asks about the preferred approach to achieving greater fairness and transparency in claims of unjustifiable hardship. Currently, section 11 of the DDA requires that, in determining whether a hardship is unjustifiable, all relevant circumstances must be taken into account, including:

^[13] Bonella v Wollongong City Council [2001] NSWADT 194 [95]–[111]; Gardiner v WorkCover Authority of NSW [2004] NSWADTAP 1 [24]–[41].

^[14] Disability Discrimination Act 1992 (Cth) s 5(2), s 6(2).

^[15] [2017] FCAFC 128.

^[16] Australian Human Rights Commission, Free & Equal: A reform agenda for federal discrimination laws (December 2021), p. 292.

a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned; b) the effect of the disability of any person concerned; c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person; d) the availability of financial and other assistance to the first person; and e) any relevant action plans given to the Commission under section 64.

Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.

Under the current provisions, there is no express statutory duty to consult the person with disability before a duty holder claims unjustifiable hardship, nor is there an express requirement to document the reasons relied upon when asserting the defence. However, as noted in the Issues Paper, in practice courts have evaluated evidence of what the respondent considered under ‘all relevant circumstance’ in order to assess the respondent’s claims of unjustifiable hardship.^[17] Courts have sometimes prioritised financial and organisational burdens when adjudicating hardship claims, sometimes at the expense of the participation and interests of the person with disability.

ADNSW prefers the approach recommended by the DRC that two more factors should be taken into account when determining whether the making of a specific adjustment would impose unjustifiable hardship on duty holders, such as an employer or school including:

  • how much the person with disability has been consulted; and
  • what alternative options were available to remove or reduce hardship.

In addition to those factors, the DRC recommended that duty holders should be required to document factors they considered and give reasons for claiming unjustifiable.^[18]

In ADNSW’s experience, consultations are important to ensure decisions are informed by people with lived experience of a disability and an alternative can be proposed by the person who is affected. Without consultation, duty holders may conclude adjustments are infeasible when a workable low-cost alternative exists. The DRC recommended formalising consultation as a factor and ADNSW considers this a minimal, necessary step to shift practice toward participatory decision-making. Similarly, a requirement to document what was considered; why particular alternatives were rejected, and what assistance (if any) was

^[17] King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8; Williams v Commonwealth [2002] FMCA 89; Hills Grammar School v Human Rights & Equal Opportunity Commission [2000] FCA 658.

^[18] Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, p. 337.

sought or available will promote accountability and create a usable evidentiary record for conciliation or court review.

Question 20 of the Issues Paper concerns whether the DDA should be amended 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.

The DDA provides an exception to unlawful discrimination where a person with disability is unable to perform inherent requirements of a role, even if the employer made reasonable adjustments for the person.^[19] However, there is no statutory obligation for employers to consult with a person with a disability about possible adjustments before concluding that they cannot meet inherent requirements.^[20] This gap results in premature exclusion of qualified candidates and undermines the participation goals of the DDA. As noted above, ADNSW agrees with the DRC’s recommendation that employers should have to consider the two additional factors.

Encouraging consultation would ensure that employment decisions are made in partnership with people with disability, reflecting their lived experience and expertise regarding the adjustments that work for them. While concerns have been raised regarding privacy and the disclosure of health information,^[21] these can be addressed through appropriate safeguards and confidentiality protocols under the Privacy Act 1988 (Cth) and workplace law.

Vilification

Questions 27 to 30 in the Issues Papers deal with amending the DDA to introduce provisions to protect people with a disability from harassment, offensive behaviour and vilification. The DDA currently lacks a provision equivalent to section 18C of the Racial Discrimination Act 1975 (Cth), which prohibits public acts that are reasonably likely to offend, insult, humiliate or intimidate based on race.^[22] The DRC proposed the introduction of a prohibition on offensive behaviour on the basis of disability and a separate provision for more serious conduct, including incitement of hatred or threats of violence. Protections against harassment, offensive behaviour and vilification related to disability are not included in the ADA, however, anecdotally ADNSW receives complaints and enquiries from people with a disability who have allege to have experienced treatment that would constitute this. The rise of digital platforms is another significant issue that has created new avenues for hate speech, harassment and vilification. ADNSW supports amending the DDA to include prohibitions on harassment and offensive behaviour which covers online spaces. ADNSW also supports civil protections against vilification on the basis of a person’s disability. These

^[19] Disability Discrimination Act 1992 (Cth) s. 21A.

^[20] Disability Discrimination Act 1992 Review, Issues Paper, p. 55.

^[21] Disability Discrimination Act 1992 Review, Issues Paper, p. 56.

^[22] Racial Discrimination Act 1975 (Cth), s.18C

amendments would fill critical gaps in the legislative framework and affirm Australia’s commitment to the CRPD.

Assistance Animals

Question 38 in the Issues Paper concerns protections for assistance animals and how they could be clarified for both people with a 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.

Section 9(2) of the DDA defines an ‘assistance animal’ as any animal which is:

(a) accredited under a State or Territory law; (b) accredited by a prescribed training organisation prescribed by the regulations for the purposes of this paragraph; or (c) trained to assist a person with disability and meets appropriate standards of hygiene and behaviour in public places.^[23]

As discussed in the Issues Paper, despite this definition in the DDA there is uncertainty in the community about the rights and obligations of duty holders and users of assistance animals. Although s 9(2)(a) provides that an assistance animal is one that is accredited under a state or territory law, there is no nationally consistent regulation and accreditation scheme for assistance animals in Australia. Some jurisdictions have accreditation schemes (Queensland, South Australia, ACT, Western Australia), while others (NSW, Victoria, Tasmania, NT) do not.^[24] This inconsistency undermines the DDA’s national uniformity goal and creates “recognition gaps” when persons with assistance animals travel across jurisdictions.

In relation to s 9(2)(c), the DDA does not provide a definition of ‘appropriate’ training or hygiene standards. In Forest v Queensland Health, the Federal Court held that ‘training’ bears its ordinary meaning and does not require formal accreditation, thereby protecting self-trained animals.^[25] While this interpretation supports accessibility, the decision gives little guidance to service providers and duty holders about what is “good enough” training or behaviour in practice.

ADNSW has received complaints from people with a disability who use an assistance animal and continues to observe complaint patterns in which service providers refuse entry to people with disability, citing uncertainty about evidence requirements.^[26] Inconsistent laws

^[23] Disability Discrimination Act 1992 (Cth) s. 9.

^[24] See Guide, Hearing and Assistance Dogs Act 2009 (Qld); Dog and Cat Management Act 1995 (SA) pt 5; Dog Act 1976 (WA) pt III div 4; Domestic Animals Act 2000 (ACT) pt 3.

^[25] Forest v Queensland Health (2007) 161 FCR 152, 174–5 [90]–[92].

^[26] Submission on National Principles for the Regulation of Assistance Animals, Anti-Discrimination NSW, https://antidiscrimination.nsw.gov.au/documents/submissions/ADNSW Submission on the National Principles for the Regulation of Assistance Animals.pdf

and accreditation schemes across Australian states and territories relating to assistance animals exacerbates the problem. The result is a tension between accessibility (allowing people with disability to use assistance animals without procedural barriers) and legal certainty (giving duty holders a clear standard). Without reform, the ambiguity may perpetuate discriminatory refusals under the guise of “lack of evidence”.

In view of this, ADNSW supports the following reforms:

  • Minimum evidentiary standards to show that an animal is an assistance animal. ADNSW supports the most flexible approach (guidance issued by the AHRC) to support the often-complex needs of people with a disability.
  • Guidance on behaviour and minimum training requirements under the DDA to provide clarity to both users and service providers of the expectations of public behaviour. However, it is also costly and resource intensive to access training and trainers for assistance animals, therefore ADNSW supports making multiple options available to people to meet the criteria.

Further information

For questions about this submission, please email the Manager, Governance and Advice, Anti-Discrimination NSW at redacted.

We strive to eliminate discrimination in NSW by resolving enquiries and complaints, raising awareness about discrimination and its impacts, and taking action to influence change.

We administer the Anti-Discrimination Act 1977 (NSW) and the civil complaints scheme under the Conversion Practices Ban Act 2024 (NSW).

Enquiries and complaints

redacted
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Telephone interpreter service
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Website antidiscrimination.nsw.gov.au

Head office redacted

FEDERATION

OF COMMUNITY LEGAL CENTRES VIC

14 November 2025

DDA Review Attorney General’s Department Australian Government

BY EMAIL ONLY: DDAreview@ag.gov.au

Dear Attorney General’s Department,

The Victorian community legal sector response to the Disability Discrimination Act 1992 (Cth) (DDA) Review

We welcome the opportunity to comment on the DDA Review. Modernising and improving the DDA is a critical area of reform for community legal centres in Victoria.

The Federation of Community Legal Centres (Federation) is the peak body for Victoria’s 50 community legal centres. Our members are at the forefront of helping those facing economic, cultural or social disadvantage and whose life circumstances are severely affected by their legal problem.

For more than 50 years, community legal centres have been part of a powerful movement for social change, reshaping how people access justice, creating stronger more equitable laws, and more accountable government and democracy. We want a community that is fair, inclusive and thriving: where every person belongs and can learn, grow, heal, participate and be heard.

Victorian community legal centres are leaders in providing holistic, wrap around and trauma-informed legal support. Our members work directly with people with disabilities who face multiple and intersecting barriers to accessing justice. With at least 40 per cent of community legal centre clients identifying as having a disability, our members bring deep and practical expertise in advising, representing, and advocating for people with disabilities across a wide range of legal issues^[1].

A number of our community legal centres also specialise in providing integrated legal support to people with a disability. In particular, we highlight the work of Disability Discrimination Legal Service, AED Legal Centre for People with a Disability, Villamanta Disability Rights Legal Service and the Mental Health Legal Centre.

Strengthening the DDA

Strengthening the DDA is a key priority for the community legal sector, as set out in our policy platform: Action for Justice: A Roadmap for Change (see Recommendation 30).

^[1] Disability status is an under-collected data point across the community legal sector. Individual research projects have found the proportion of community legal centre clients living with disability or mental distress may be as high as 60-70 per cent.

Federation of Community redacted www.fclc.org.au\ Legal Centres Victoria redacted