Disability Discrimination Act Review

Submission by Jesuit Social Services

November 2025

We acknowledge the Traditional Custodians of all the lands on which Jesuit Social Services operates and pay respect to their Elders past and present. We express our gratitude for their love and care of people, community, land and all life.

Jesuit Social Services:

Who we are and what we do

Jesuit Social Services has been working for almost 50 years delivering support services and advocating for improved policies, legislation and resources to achieve strong, cohesive and vibrant communities where every individual can play their role and flourish.

We are a social change organisation working with some of the most marginalised individuals and communities, often experiencing multiple and complex challenges. Jesuit Social Services works where the need is greatest and where we have the capacity, experience and skills to make the most difference.

We are a national organisation with a significant footprint in Victoria, New South Wales and the Northern Territory.

Our service delivery and advocacy focus on the following key areas:

• Justice and crime prevention — people involved with the justice system
• Mental health and wellbeing — people with multiple and complex needs including mental illness, trauma, homelessness and complex bereavement
• Settlement and community building — recently arrived immigrants and refugees, and disadvantaged communities
• Education, training and employment — people with barriers to sustainable employment
• Gender justice — providing leadership on the reduction of violence and other harmful behaviours prevalent among boys and men, and building new approaches to improve their wellbeing and keep families and communities safe
• Ecological justice — inviting discussion on what practices, policies and actions can be taken by governments, individuals, organisations and the community services sector within Australia to build an ecologically just society.

Research, advocacy and policy are coordinated across all program and major interest areas of Jesuit Social Services. Our advocacy is grounded in the knowledge, expertise and experience of program staff and participants, as well as academic research and evidence. We seek to influence policies, practices, legislation and budget investment to positively influence people’s lives and improve approaches to address long-term social challenges.

We do this by working collaboratively with governments, business and the community sector to build coalitions and alliances around key issues, and building strong relationships with key decision-makers and the community.

Our Learning and Practice Development Unit builds the capacity of our services through staff development, training and evaluation, as well as articulating and disseminating information on best practice approaches to working with participants and communities across our programs.

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Disability Discrimination Act Review

Jesuit Social Services welcomes the opportunity to make a submission to the Attorney General Department’s Review of the Disability Discrimination Act.

We have programs and work alongside people in Victoria, New South Wales and the Northern Territory, and have advocated on matters affecting people with disability – and others experiencing multiple or complex challenges – for almost 50 years.

Our most longstanding experience lies in working alongside adults and young people who have contact with the criminal justice system. We also work alongside people outside the criminal justice system who have complex needs and disability through programs relating to settlement, employment and skills training, mental health and intensive support packages.

This submission focuses primarily on the experiences of people with disability who have contact with the criminal justice system, including people in custody, those on community orders and those who have contact with the police or courts. It does not discuss the legal mechanisms or wording within the Act, which our colleagues in the community legal sector are best placed to do. Rather, we share our insights into the effects of discrimination on the people with whom we work, and propose changes to address them.

Discrimination against people with disability in the community increases the likelihood that people go on to have contact with the criminal justice system in the first place. Change is required to ensure everyone is treated equitably, and that people who experience disability not only receive direct disability support, but also have services more broadly tailored to meet their needs.

The discrimination our participants face occurs in the context of their engagement with government systems and institutions. This often leads to compounding harms and entrenchment in the criminal justice system. Reform to the Act must therefore ensure that it better addresses indirect discrimination – in particular systemic issues in government systems, programs and policies.

We support a positive duty and requirements for individuals and organisations - private and public - to make appropriate accommodations to prevent disability discrimination. We also believe stronger oversight powers of the Act are needed, and encourage the establishment of powers for the Australian Human Rights Commission, or another appropriate body, to investigate and act on systemic discrimination rather than only responding to individual complaints.

Finally, we note that a range of the necessary changes do not fall within the powers of the Act itself, but are required alongside implementation of changes to it by other bodies – including operationalising changes to the definition of disability, training staff in a range of sectors, and other measures.

Our participants

A 2023 Victorian Auditor-General’s Office (VAGO) report stated that people with disabilities are significantly overrepresented in the criminal justice system, with a particularly high overrepresentation of people with an acquired brain injury (ABI) or an intellectual disability.1 The report stated that the Victorian Department of Justice and Community Safety does not know how many prisoners have an ABI or an intellectual disability, nor how many of these require specialised support.2 There is also currently no data on the number of prisoners receiving support through the National Disability Insurance Scheme (NDIS) during and after their time in custody. The people included in these statistics are often our participants.

In 2024–25, 36% of participants in Jesuit Social Services’ adult justice programs and 32% of participants in our youth justice programs had a recorded disability.3 By comparison, nationally the proportion of people living with disability in the general population is 18%.4 The actual number of our justice program participants living with disability is likely to be significantly higher due to the challenges involved in obtaining a diagnosis. This is discussed in the section that follows.

Participants in our justice programs rarely face only one challenge. For example, participants in the Youth Justice Community Support Service – a program that offers intensive support to young people involved with the criminal justice system, primarily in the community – tended to have at least one medical condition (80% of participants in 2024–25), challenges relating to substance use (58%), and experience of, or current involvement with, child protection, either as a child or as a parent (64%). These statistics are similar across Jesuit Social Services’ justice programs.

Understanding the ways in which different forms of discrimination intersect and compound, and the impact that this can have on a person’s life, is necessary for understanding and addressing any one form of discrimination, and these forms of discrimination cannot be addressed in silos. While our submission focuses in particular on the intersection between the criminal justice system and disability, many of our participants are in cohorts that are significantly overrepresented in the criminal justice system – and this is the case, in part, due to compounding forms of discrimination.

1 Earlier Victorian Department of Justice and Community Safety data referenced in the report estimated that 42% of male and 44% of female prisoners in Victoria suffered from an ABI. Victorian Auditor-General’s Office (2023). Correctional Services for People with Intellectual Disability or an Acquired Brain Injury, p. 12. Weblink. 2 VAGO (2023), p. 15. Our own report in collaboration with RMIT’s Centre for Innovative Justice found that prisons in Victoria have extremely high representation of people with ABI, but that despite this, supports considered essential for people with other forms of disability in the community are lacking in prisons. Jesuit Social Services and Centre for Innovative Justice, Recognition respect and support: Enabling justice for people with acquired brain injuries, 2017. Weblink. 3 The Issues Paper associated with this review notes roughly similar figures of prison entrants reporting a chronic condition or disability affecting their day-to-day participation in activities, education or employment. Attorney-General’s Department (2025). Disability Discrimination Act 1992 Review, p. 71. Weblink. 4 Australian Institute of Health and Welfare (2024). People with disability in Australia. Weblink. This Review’s Issues Paper refers to ‘over 1 in 5,’ but this is based on 2022 data from the Australian Bureau of Statistics. Attorney-General’s Department (2025), p. 4.

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Case study: redacted

redacted is a man in his twenties who has schizophrenia — a disability under the Disability Discrimination Act and NDIS. He also likely has cognitive delay, but this has not been formally diagnosed to date.

redacted story revolves around the way his unmet need for disability support has undermined his ability to function in daily life and get support for other needs, and how multiple challenges have subsequently compounded the barriers he faces to addressing any one of them.

redacted arrived in Australia as a refugee approximately a decade ago. His forensic history started around the time of his arrival, and he has been incarcerated around 15 times, with most charges relating to theft and sexual exposure in public places. There is an intervention order protecting his mother due to family violence and assault, and he is prohibited from returning to the family home. He uses ice, marijuana and alcohol.

Prior to being in custody in 2024, redacted had applied with some assistance for disability support under the NDIS, but was rejected on the basis of his drug use. redacted was not receiving other disability support. His disability was a barrier to employment, and he did not have any source of income.

In late 2024, redacted was released from custody on a Community Corrections Order, but as he did not have support for housing, nor any other income, he was released into homelessness. redacted was ineligible for disability housing without a Disability Support Pension (DSP); his needs were too complex to be eligible for supported accommodation; and he was both too young and his needs were too complex for rooming housing. Supported accommodation would have would have prevented redacted from experiencing ongoing homelessness.

redacted disability prevented him from keeping a mobile phone, so he was mostly uncontactable. He also did not have the capacity to attend his Community Corrections Order appointments, and therefore missed them. He did not have the capacity to seek and arrange alcohol and other drug counselling and mental health treatment, which he was required to do under his Order, and consequently failed to meet these requirements also. Though he had been referred to Jesuit Social Services’ ReConnect program, staff were unable to find him without an address or phone number.

After being released from custody, redacted attempted to reengage with an Area Mental Health Service, but it did not accept a referral from prison due to not having a fixed address — though he had attended this service in the past.

In April, redacted returned to custody on a number of charges. This enabled ReConnect to reengage with him and successfully apply for the DSP on his behalf. Receiving the DSP enabled ReConnect to facilitate redacted move upon release into a Supported Residential Service (SRS) which, in turn, enabled him to reengage with the Area Mental Health Service and receive mental health support.

After being released, redacted nonetheless appeared not to be aware of his ongoing legal matters and the requirements to attend court, meet bail conditions and comply with his Order. A few weeks ago, redacted was arrested and remanded again. His DSP has been paused; his room in the SRS is being kept for him, but it is not clear for how long and whether he will be charged in the meantime (though he currently has no income as his DSP is paused); and the process of supporting him to apply for support under the NDIS cannot meaningfully be progressed while he is on remand.

ReConnect is currently seeking a disability assessment with the assistance of redacted lawyer in order to gain an official record of his diagnoses and capacity to start to address the challenges redacted faces and obtain the services he needs.

redacted is ineligible to apply for Australian citizenship while he has ongoing involvement with the criminal justice system, and his current remand puts him at risk of being deported, though he does not have a community or extended social ties to return to if this happens.

ReConnect continues to work with redacted.

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redacted story is complex — yet this is common to many of our participants. As in redacted case, our participants frequently experience compounding challenges that become increasingly hard to overcome, and the domino effect that discrimination by systems against people on the basis of their disability can have on their lives across many spheres.

The application processes for disability support — in this case, the NDIS and the DSP — are fundamentally discriminatory against some of the people they are established to support.

In redacted case, this meant he had neither practical disability support nor funding that he was in fact entitled to; nor, again, access to employment or other finances due in part to his disability and mental health conditions.

Without the DSP, redacted was unable to get safe, stable and ongoing accommodation, which in itself is a source of significant harm, instability and poor mental and physical health for anyone who experiences it, and that he was ineligible for a range of services that require a fixed address.

These factors hindered redacted from developing protective factors against reoffending. Once he had reoffended, additional requirements were placed on him which, because they were unsuited to his needs and abilities, he was unable to understand, let alone comply with. redacted cycling in and out of custody leads to further harm and, as time progresses, the challenges that must be overcome for redacted grow, and the harm he suffers on the way — and harm he may cause others — grow too. In redacted case, it may culminate in his removal from the country.

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

The existing definition of ‘disability’ under the Act is broad and does not rely on a person having a formal diagnosis. This is important for ensuring that it does not exclude a range of people with disability.

However, it poses challenges as inconsistencies arise across different laws and systems that define disability differently or require varying levels of proof before services are provided. As a result, the definition set out in the Act is not meaningfully operationalised and does not effectively protect the full group of people it defines.

Further, while the Act recognises the intersectional nature of people’s challenges, service systems may fail to do so. For example, though the Act defines discrimination such that an action that could be attributed to discrimination of more than one kind is considered disability discrimination for its purposes, the NDIS requires that the cause of a need or challenge be conclusively attributed to disability at the exclusion of other causes – which often is not possible. This has an indirect discriminatory effect on people who experience multiple and intersecting challenges.

Recommendation 1: Any definition of disability in the Act should take into consideration the inconsistencies across different laws and systems and the challenges that this may give rise to. The Government should work with these systems to ensure that the protections afforded by the Act can meaningfully be upheld and protected by the systems that come under its remit.

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

AND

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

Our participants experience systemic discrimination as a result of the way a range of government systems and services operate, including in accessing assessment and diagnosis for disability, applying for services and interacting with other systems, such as the criminal justice system. The definition of indirect discrimination under the Act should capture these systemic discriminatory effects, and hold institutions and services accountable as duty holders.

Assessment and diagnosis

Seeking assessment and diagnosis for disability is often a challenging, convoluted, expensive and lengthy process.

People may wait for a number of years before being given a diagnosis. During this time, they are generally ineligible for services and supports – including financial support – that the diagnosis would entitle them to.

The process often takes even longer in custody. Our staff have observed that people often go through their criminal justice system involvement, including their time in custody, while waiting for a diagnosis: the wait lists are extremely long, and at times people may wait for years.

One of the biggest barriers to obtaining an assessment is cost. A neuropsychological assessment, for example, can exceed $3,000. In the majority of cases this cost is not covered by government. As a result, a vast number of people are prevented from obtaining the supports and services they ought to be entitled to.

Families and individuals often also do not know what is required in order to pursue an assessment or diagnosis, which can often be a complex and time-consuming process, nor how to access services that could support themselves or their child.

To address this, the Act should include these kinds of systemic discriminatory effects within its understanding of indirect discrimination, and charge the relevant systems and services with positive duties to ensure discrimination does not occur, and that everyone is equally able to access assessment and diagnosis.

Eligibility

The process of obtaining services or support on the basis of disability can be extremely complex, in particular for the NDIS and DSP. Often, the requirements themselves are discriminatory towards people with some forms of disability – especially those with complex needs – rendering them unable to successfully apply.

First, extensive documentation is required. However, people with some cognitive and intellectual disabilities need support to obtain this documentation and navigate the relevant systems. In addition, people with disability who are experiencing homelessness may not have access to documentation. Those in custody rely on custodial staff to support them in the process, who may not have the time or capacity to do so.

To access the NDIS, the cause of a person’s symptoms or presentation are required to conclusively be attributed solely to disability. This means that if there is a possibility that

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another factor, such as substance use, is affecting the person at the same time, it is not possible to establish the causal link with their disability. Failing to establish this often sees a person being denied services, though they may have both a disability and use alcohol or other drugs and/or have mental health concerns. Further, people with some untreated disabilities may self-medicate with alcohol or other drugs.

In order to conclusively attribute a presentation or set of symptoms to disability, people are often required to show that they have undergone treatment – medication or other therapy – for an extended period of time, and that it has not succeeded. However, a person who is experiencing homelessness or going in and out of custody cannot maintain consistent treatment with a particular healthcare provider, not least because healthcare providers often require a fixed address in order to see and treat patients in the first place. As a result, people who are experiencing homelessness or who go into custody are unable to demonstrate uninterrupted, extended treatment and are deemed ineligible.

People in custody have their DSP cut off after two years, and are then required to reapply. Often, they are required to produce new supporting evidence – though they may have no way of obtaining such evidence.

In addition to strict eligibility criteria, services often refuse to engage with people who are considered too difficult or too aggressive. As a result, people are denied disability support or other services that they need and cannot get elsewhere, and the challenges they face exacerbate and compound.

In addition, there are very few providers in the NDIS market which can safely and effectively meet the needs of people with complex and forensic behaviours. This means that funded supports may nonetheless be unable to be implemented.

People with some disabilities may struggle to meet attendance requirements or manage changes to schedules, and may be penalised or have their file closed for failure to do so. Supported accommodation services in particular are often unsuited to people with complex needs and some forms of intellectual or cognitive disability, and though some exist, they are insufficient in scale. Further, some housing options exclude people who have had certain charges, such as arson, and people may consequently be placed in unsuitable housing or no housing at all.

redacted case, described above, bears the hallmarks of a number of these issues. First, he likely has cognitive delay, but this has not been diagnosed. This absence of a diagnosis means that obtaining the services he needs is very challenging. redacted was also deemed ineligible in the past for support under the NDIS because he uses drugs – despite it being evident that his drug use does not fully explain the challenges he faces. In addition, redacted was unable for some time to access the DSP, and required assistance from ReConnect to obtain it. Having the DSP in turn made him eligible for additional supports and services, enabling him to start to meet some of his legal obligations under his Order, which he had previously failed to meet.

Recommendation 2: To address indirect discriminatory effects, the Act should define positive duties that require systems and services to ensure that the requirements made of individuals in applying for services are suited to their needs and can reasonably be met by them given their potential disability and circumstances.

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Oversight

For the changes in the Act to genuinely address existing discrimination experienced by people with disability, there must be effective oversight and investigation powers for possible failures under the Act. An appropriate body, such as the Australian Human Rights Commission, should be charged with and equipped to oversee the operation of the Act and investigate systemic noncompliance and breaches of it.

Recommendation 3: The Australian Human Rights Commission, or another appropriate body, should be given powers and responsibilities to oversee compliance with the Act and investigate systemic and individual breaches of it.

Question 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?

Government systems and services, including the criminal justice system, do not currently treat people with disability equitably in all instances. In order to ensure people with disability are not discriminated against by these systems, education, training and support materials are needed.

Custody

People coming into custody often enter with no official diagnosis. Yet, as described, obtaining a diagnosis in custody can be very challenging. Consequently, people with disability are often not recognised as such and do not receive disability care nor are treated appropriately.

Among custodial staff, there is little training or awareness of the presentations of people with psychosocial or intellectual disabilities, and behaviours that result from disability or from an inadequate response to a person’s disability may be considered a behavioural issue and treated punitively or aggressively. In turn, this can exacerbate both the behaviour and the subsequent response. People with disability are more often subjected to additional use of force and restraints, and are placed in isolation at much higher rates than others.5 In addition to the punitive measure itself, this prevents people from participating in programs and activities available to others in custody. Often, they are subsequently released straight from isolation into the community, being unprepared and struggling to contend with the transition. In addition to the harm this causes them, it also increases their likelihood of reoffending.

Police and courts

As with custodial staff, police often respond to presentations of people with disability with the assumption that it is a behavioural choice, not taking into account that a person may have a disability. This is due in part to inadequate training. Police may use increased force and restraints, and may be more aggressive and threatening to people with disability, which may exacerbate the behaviour and lead to conflict and harm.

People with intellectual and cognitive disability at times require tailored communication to understand court processes and Order requirements. This is often not provided. As a result, as in redacted case, requirements are placed on a person that they may not understand and

5 Given there are no records of their disability, there are similarly no records of the rates of the placement of this cohort in isolation.

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are unable to meet. This is in part a result of the infrequency of diagnoses which mean that there is no formal requirement to consider the person’s disability – but also the result of an approach that sees diagnosis as the primary consideration, rather than a person’s needs.

Recommendation 4: The government should provide education, training and support materials educating government systems and services, including staff in the justice system, on their positive duties to prevent indirect and direct discrimination against people with disability, and training on better understanding and responding to people with disability. This should include guidance on what is required of them, and what accommodations are necessary for compliance with the Act.

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

Policing should be covered by the Disability Discrimination Act, in particular given the issues described above, and the experience of our participants interacting with police, and in line with the recommendation above. We defer to our colleagues in the community legal sector to recommend a practical legal approach for incorporating this in the Act.

For further information, contact: redacted, CEO, Jesuit Social Services redacted E: redacted

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