NDIA Accountability Project

Legislative guidelines for statutory limitation periods and disability discrimination

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Submission to the Australian Government

Attorney-General’s Department 2025

Review of the Disability Discrimination Act 1992.

Prepared by Eliot Shaw on his own behalf being:

a person with a disability;

a member of a family that includes numerous people with disabilities;

an advocate for people with disability at the local government level as the Co-chair of the Standing Committee on Access and Inclusion for the City of Newcastle, and

a final year student of the Juris Doctor degree at the University of Newcastle.

Dated 14 November 2025

Introduction

  1. This submission focuses on improving access to justice while touching on implementation of a positive duty to eliminate discrimination. Persons with disabilities (PWD) have the right to be eƯectively protected by the law and to positively engage with the law for personal benefit.1 It is, therefore, imperative that in seeking to update the Disability Discrimination Act 19922 (Cth) (DDA) to better enshrine and future-proof the intentions Australia has agreed to in ratifying the United Nations Convention on the Rights of People with a Disability (CRPD)3 that we seek to protect PWD from discrimination by ensuring both equality before the law and equality under the law.

  2. The recommendations made regarding access to justice and the DDA in the recent ‘Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability’ (Disability Royal Commission) primarily attempt to enshrine equality of PWD before the law, as is only natural when considering the resolution against violence, abuse, neglect and exploitation found to be perpetrated against PWD.4 Further to this, my recommendations attempt to bolster the principles of self determination and dignity for PWD when they engage with the legal system by removing barriers to the private enforcement of PWD’s rights.

Recommendation

  1. The primary ways I seek to support this outcome is through recommending the implementation of legislative guidelines establishing a presumed exception to any statutory limitation period derived from the principle of reasonable accommodation facilitating access to justice for PWD as a specific measure. This presumption can then be rebutted on a case-by-case basis given the demonstration that such an extension of time provides a disproportionate or undue burden upon the court, or if it is demonstrated that such accommodation of time lacks relevance, appropriateness and eƯectiveness for the PWD in overcoming their specific disadvantage(s). This would eƯectively provide a limited defence for people with a disability initiating a civil claim against any motion to dismiss due to statutory limitation. Such a change would better ensure that PWD are not restricted from acting upon their legal rights because they are limited by

1 CRPD/C/GC/6 , [14]. 2 Disability Discrimination Act 1992 (Cth). 3 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). 4 Attorney-General’s Department (Cth), Disability Discrimination Act 1992 Review (Issues Paper, 1 August 2025), 64-74.

their disability in seeking counsel or because of limited availability of disability legal aid services.

  1. Such a protection should also be implemented in circumstances where PWD are seeking the assistance of an administrative tribunal. This protection might be enshrined as a mandatory consideration required by administrative decision making bodies when interacting with PWD, particularly when exercising a discretion to terminate an application or complaint. This would necessarily include applications to the Australian Human Rights Commission potentially being terminated under s46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

  2. These adjustments make no bearing on any capacity of a decision-making body to dismiss a claim based on that matter:  lacking actionable substance, such as a lack of reliable evidence;  being vexatious or oppressive in nature, or  the matter has been substantively resolved in another forum.

These changes merely create a reasonable accommodation to ensure the procedural barring of cases based on arbitrary limitation periods does not hinder the capacity of PWD to access the justice system and so promote a culture of accountability in both public and private spaces when interacting with PWD.5

  1. The capacity for such a policy to be enforced federally would ensure that there is consistency when PWD attempt to access anti-discrimination services in diƯerent state jurisdictions, as currently there is no uniformity between jurisdictions on this matter.

Background

  1. Between 13 April 2017 and the implementation of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, the President of the AHRC had discretion to terminate a complaint that was lodged more than six months after an alleged unlawful discrimination had occurred under the previous iteration s46PH(1)(b) of the AHRC Act.6 Before 13 April 2017, the complaint had to be lodged within 12 months of the alleged discrimination or the discretion to terminate was enlivened.7 For a short period after the AHRC

Respect@Work National Inquiry into Sexual Harassment in Australian Workplaces

2020 until the reform in 2022, the AHRC Act was specifically reformed in cases of

5 Australian Attorney General’s Department, ‘DDAR Webinar’, (Youtube, 25 August 2025) 00:35:00 00:37:00 https://www.youtube.com/watch?v=9rG_y8_oD8khttps://www.youtube.com/watch?v=9rG_y8_oD8k. 6 Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (2021), 219. 7 Ibid.

sexual discrimination, where the required timeframe was extended to 24 months exclusively for complaints involving gender-based discrimination.8 Other forms of discrimination could still be terminated if submitted after 6 months.9 Since 2022, the relevant timeframe was extended based on the recommendation of the Free and Equal report so that all forms of discrimination would be protected against discretionary dismissal if lodged within 24 months of the alleged conduct. 10

  1. Respect @ Work report claimed that the timeframe was both blanketly inadequate and failed to recognise the complex reasons for an applicant’s delay in in making a harassment or discrimination complaint.11 It refers to a case study where it was only after a victim of discrimination was able to extract themselves from a discriminatory environment that they were able to turn their mind to legal redress on the matter.12 It seems inappropriate to consider that PWD can act with more alacrity when the current timeframes prove so diƯicult and forms so much distrust for a presumably able-bodied and able-minded person to make timely complaints when experiencing discrimination. PWD who experience limitations caused by executive dysfunction alongside other limitations in accessing their legal protections suƯer protracted delay in meeting the current statutory deadlines.

  2. The requirement for extra time is not based on how eƯiciently a trained representative might work on a matter, but at what point does the person who has suƯered unlawful acts have the capacity to access the legal system. PWD have a protracted process that requires the completion of internal resolution mechanisms, and then potentially withdrawing oneself from antagonistic environments and reestablishing physical and mental safety before they are able to pursue and enforcement of rights and opportunities. But even then, PWD are hampered from engaging disability-trained legal advocates because the Australian Government continues to chronically underfund specialist legal aid services.

  3. The Free and Equal report stated the requirement that the period of time specified in s46PH(1)(b) of the AHRC act should be consistent between Discrimination Acts. However, such equivalence would in eƯect act as indirect discrimination by the definition accepted by the CPRD Art 5(2).13 In conversation with Dr Lee Sturgeon, a practicing clinical expert in the treatment of people with psycho-social and neurodegenerative disabilities, he presented numerous cases where people with these classes of disability proved unable to call a friendly educational institution

8 Ibid. 9 Ibid. 10 Explanatory Memorandum, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth),[42]

11 Australian Human Rights Commission, Respect@Work: Sexual Harassment National Inquiry

Report (Report, March 2020),494 12 Ibid 495 13 Committee on the Rights of Persons with Disabilities, General Comment No 6: Equality and Non Discrimination, CRPD/C/GC/6 (9 March 2018), [18].

to change their course of study or inquire into alternative employment avenues. These people were not fundamentally incapable of expressing their legal desires, however the imposition of time based limitations on their rights posed disproportionate hardship on the capacity of PWD to realise their rights.

  1. Entities such as the Australian Chamber of Commerce and Industry advocated for the maintenance of the 2017 6-month discretion to terminate a case, and argued further for an absolute limitation period.14 This was argued to provide additional protection to industry from vexatious applicants and limited availability of evidence over time, and thus encourage aggrieved individuals to lodge complaints in a timely manner.15 Mentioned above, the limitations experienced by people suƯering discrimination are not due to opportunism or sloth, but functional limitations that relate to the experience of being victimised and the disabling conditions experienced by PWD.

  2. The utility of an independent body to oversee disability complaints on behalf of PWD in concert with the implementation of a positive duty was raised by the Disability Royal Commission.16 There is benefit, especially considering the cost that a purely complainant based system of disability rights protection places on those who are the least capable in our society of asserting those rights. However, it is incumbent when reforming the DDA to consider the requirements of preserving the self-determination and the agency of PWD enshrined in art. 12 of the CRPD.17 It is, therefore, important that we make the law accessible to PWD in addition to providing systemic assistance in enforcing PWD rights. Do not alienate us from the process of asserting our rights. Nothing about us without us.

Conclusion

  1. In summation, limitation periods cause disproportionate burden on PWD. These limitations are, in themselves, a cause of indirect discrimination which is baked into the very processes used to protect our rights to participate under the law. For this reason, PWD require an exception under the law that protects them from the undue harm caused by statutory limitations that threaten the premature dismissal of their claims.

14 Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (2021), 219. 15 Ibid. 16 Commonwealth, Royal Commission into Violence, Abuse, Neglect, and Exploitation of People with Disability, Independent Oversight and Complaint Mechanisms vol 11 (Final Report, 2023). 17 Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12, Equal Recognition Before the Law, CRPD/C/GC/1 (11 April 2014), [8]-[9], [34].