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Disability Discrimination Act Review

Attorney-General’s Department

November 2025

About the Down Syndrome Australia Consortium

Down Syndrome Australia (DSA) was established in 2011 as the national peak body for people with Down syndrome and their families in Australia. Our vision is that people living with Down syndrome are valued and have full access to social and economic inclusion to reach their full potential. Down Syndrome Australia is one of twelve National Disability Representative Organisations (DRO) and leads a consortium of organisations to represent people with intellectual disability and their families and supporters, with a focus on intellectual disability caused by chromosomal variations (DSA Consortium).

People with these chromosomal variations experience intellectual disability varying from mild to severe, often accompanied by degrees of physical disabilities, higher rate of co-occurring neurodevelopmental conditions, communication disabilities and health issues.

It is important that the views of people with chromosomal variations and their families and supporters are represented in the development of policies and services that affect their lives. Families and supporters play a significant role in advocacy, skill development and providing supports and care. They are a critical part of the lives of a person with intellectual disability and form an important part of our advocacy work.

All our work is within the human rights model of disability and informed by the Convention on the Rights of Persons with Disabilities (UNCRPD).

Our consortium members are:

• Down Syndrome Australia and its’ member organisations - ACT Down Syndrome and Intellectual Disability, Down Syndrome and Intellectual Disability Queensland, Down Syndrome Victoria and Down Syndrome Western Australia

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• Angelman Syndrome Association Australia
• Australian X and Y Spectrum Support
• Cri du Chat Support Group
• Fragile X Association of Australia
• Prader-Willi Syndrome Australia
• Smith-Magenis Syndrome Australia
• Turner Syndrome Association of Australia

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A note on other submissions

The Down Syndrome Australia Consortium is supporting the following submissions in order to engage with the broad range of issues covered by the Disability Discrimination Act Review:

• All Means All
• Down Syndrome NSW
• Justice and Equity Centre (JEC)
• National Centre of Excellence on Intellectual Disability Health (NCEIDH)
• Welcoming Disability
• Women with Disabilities Australia (WWDA)

Setting the scene

he Down Syndrome Australia Consortium (DSA Consortium) support legislative reforms that implement the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (DRC) recommendations and align with the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

In a 2024 DSA survey, 54% of people with Down syndrome who responded told DSA that they feel like they are part of their community, and 30% said they sometimes feel like part of their community. Feelings of exclusion and being an outsider are still common in our community even when there are legislative approaches such as the Disability Discrimination Act 1992 (DDA) or the Disability Standards for Education 2005 (DSE), and non-legislative tools like Australia’s Disability Strategy 2021-2031.

We continue to hear from our communities about persistent discrimination across education, healthcare, employment, and other essential services. The issues people face today mirror those raised more than a decade ago, highlighting the limited impact of the DDA in advancing equality, access, and inclusion. Meaningful reform is urgently needed to ensure the DDA truly protects and empowers our communities.

The DDA outlines its objectives in Part 1, Section 3, and its focus is on achieving a society free from barriers to equality through 3 objects. This submission focuses on whether the DDA and its mechanisms, including Standards, have been effective in achieving this, or achieving progress in this direction, and changes that could support positive change in these areas.

This submission will not describe the outcomes of the existing policies and strategies mentioned, but will highlight some of the concerns that impact people with Down syndrome and other intellectual disability caused by chromosomal variations. Some of these issues might be considered outside of the scope of the current consultation but we believe that all of these aspects should be considered.

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Key themes and issues

Is the DDA fit for purpose?

As identified by the DRC, the DDA is not fit for purpose. Dr Ben Gauntlett was concerned that people with disability ‘do not know what their rights are in certain situations’ and ‘are required to bear the burden of enforcing those rights’.1 The DSA Consortium shares this concern and the reliance on individuals to reduce barriers to equality. It is important we recognise that this burden is even greater for people with Down syndrome and intellectual disability. The DDA, and processes that support it such as Australia’s Disability Strategy2 need to provide support for people with intellectual disability to learn about and understand their rights so that they can then have the opportunity to exercise their rights.

Complaints process

Complaints from people with disability under the DDA have consistently represented the largest proportion of complaints made across all discrimination legislation, ranging from 37 to 52 per cent of all complaints between 2017–18 and 2023–24.2 The DSA Consortium would expect that if the objectives of the DDA were being met that complaints across all areas of discrimination would be relatively similar.

Despite this large volume of complaints, only 3% of DDA complainants identified as having an intellectual disability,2 while representing one of the largest disability types in the population. The DRC revealed that people with intellectual disability are likely to face greater levels of discrimination than their peers and yet are less likely to report this to Australian Human Rights Commission (AHRC).1 This discrepancy is a problem that should be urgently addressed.

DDA’s unnecessarily complex and inaccessible complaints processes serve as disincentive for people with intellectual disability to use the Act as intended – that is to address discrimination and unfair treatment where it occurs.

The complaints process must be redesigned to be accessible, including incorporating supported decision-making (SDM) at every stage. In their submission to the DDA Review, Down Syndrome NSW have raised concerns about the complaints model which is legislated in the DDA, which assumes people with intellectual disability and their families can navigate complex legal systems. We support their recommendation to simplify the complaints mechanism and establish a supported decision-making framework, introduce plain language processes, and provide advocacy and legal support throughout proceedings.

1 Commonwealth of Australia (2023) Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, Realising the Human Rights of People with Disability, Volume 4, link here 2 Australian Human Right Commission (2024) Annual Report 2023-2024, Complaints Statistics, link here

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Accessibility of the DDA

The DSA Consortium is concerned about the accessibility of the DDA and the processes which sit under it.

Our consortium members have told us that systemic barriers to access have discouraged pursuing a case through the DDA. These include a long wait time at AHRC (9+ months), the non-enforceable nature of any outcome, the potential subsequent lengthy process at the High Court, as well as fear of repercussions.

The DDA must be clear, easy to understand and accessible to people with intellectual disability and communication challenges. This not only applies to how the legislation is drafted, but how the DDA is operationalized, communicated and managed day to day.

The AHRC should have regulatory powers to enable them to pursue enforcement action, issue compliance notices, and other audit and review functions. This will ensure the burden of ensuring the DDA is enforced and its operation does not entirely rest on people with disability as complainants.

Furthermore, it should be considered that people with disability and particularly people with intellectual disability do not always have accessible options from the mainstream market of goods or services. For this reason, people may need to maintain the relationships they have with organisations especially where there are limited options in a location which provides a particular good or service. For example, many families will choose not to make complaints about discriminatory behaviours from a school if their child will continue to attend that school, for fear of damaging the future relationship. We hope that a positive duty to eliminate discrimination, if regulated, could work towards solving this issue.

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Case Study

One family in the DSA Consortium community resides 30km from the local government school, in a town where all high-school students travel to school on a Department funded bus. The Department of Education failed to develop a policy for transporting a student with complex support needs to the mainstream high-school, and after significant advocacy, the family accepted an offer from the Department to transport their child to the mainstream school via the special school bus. However, the Department would not re-route the special school bus to ensure full attendance at school and as a result, the child missed 2 out of 5 classes every day. Although adjustments were made, they were not equitable, nor consistent with inclusive education principles. The family sought legal advice and were advised that although the case would have a high chance of success at AHRC, the Department may be able to argue that they made an adjustment and that adjustment was reasonable, due to the unclear definition in the Act of what is a ‘reasonable’ adjustment. The current legal grey areas in the DDA allow agencies to defend minimal action as sufficient. The DDA must clearly define what constitutes a meaningful and equitable adjustment. The family were also advised of a long wait time at AHRC (9+ months), the non-enforceable nature of any outcome, the potential subsequent lengthy process at the High Court, and potential delays and retaliation by the Department of Education should they find out a lawyer was involved. The family did eventually get the desired outcome from the Department of Education (chaperone on the mainstream bus) without the need to go to AHRC, however they had to threaten to pursue legal options to get the sought outcome, and the Department and school (at the Regional Directors’ direction) commenced many actions (including refusing to communicate with the family and regularly sending the student home early citing ‘behavioural concerns’) that saw the family have to leave the school.

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Responses to select consultation issues

Definition of disability

The DSA Consortium is guided by Australia’s commitments to the UNCRPD and applies a human rights focus in all aspects for people with disability. This applies to all the work we undertake, including where we are required to define terms such as ‘disability’ or ‘intersectional’. In these situations, the DSA applies the modern interpretations of the social model, or human rights model of disability.

The DDA uses a definition of disability which is legalistic, medical and not reflective of the community understanding of disability. Despite this, the DSA Consortium is not aware that the current definition of disability is a barrier to inclusion for people with Down syndrome or other intellectual disability caused by chromosomal variation. The DSA Consortium supports the Justice and Equity Centre position that definition should not include deficit-based language, maintain its current breadth, including coverage of neurodiversity, not require a formal diagnosis, and incorporate health status/medical condition and medical record.

Regarding changes to the entire definition of disability, the DSA Consortium supports more intensive co-design work with people with disability, their family, carers and kin, and with people who work in individual advocacy and legal roles. An important aspect of this consultative process would be to provide potential interpretations under the law which might impact on achieving the objects of the DDA. Should there be a change to the language around definition, the DSA Consortium believes that it is appropriate to make specific reference to intellectual disability as a factor for increasing the likelihood and severity of discrimination. The Fair Work Act 2009 (Cth) could provide a model to referencing specific protections for different groups.

Intersectionality

The DSA Consortium strongly supports any effort to include intersectional experiences into the DDA. We support JEC’s position that the DDA should recognise that experiences of discrimination can arise from the interaction of multiple attributes, and not disability alone. The anti-discrimination legislation of many States and Territories could be a model for recognising intersectionality in law, including by allowing claims under the DDA to identify discrimination on the basis of attributes in addition to disability.

Many people with an intellectual disability have co-occurring disabilities that are likely to increase barriers to inclusion in public life. This is in addition to other intersecting identifies such as gender, LGBTQI, CALD and First Nations communities that can further impact a person’s experience of discrimination. We support Women with Disabilities Australia’s recommendation to amend the Act to expressly recognise intersectional discrimination,

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both across protected attributes and through broader contextual factors such as economic status, caring roles and rurality, and harmonising anti-discrimination frameworks.

In addition, there should be special consideration of the impact of intersectionality when a person with intellectual disability is accessing healthcare. A recent human rights report My Body (but not) My Choice3 found that women with intellectual or psychosocial disabilities are prevented from making free and informed decisions about their healthcare, particularly their sexual and reproductive healthcare. A positive duty will be helpful in ensuring inclusivity and accessibility, as healthcare is often time sensitive and so DDA complaint mechanisms are sometimes not suitable for resolving issues.

Direct discrimination

Burden of proof

The existing direct burden of proof on the complainant can be another barrier for people with intellectual disability and their families. Ideally, there should be consistency across contexts, for example in employment as well as education even though the mechanisms are different (for example Disability Standards for Education 2005 v Fair Work Act 2009 (Cth)). The burden of proof must shift from the individual to a shared responsibility across both parties to lower the barrier for entry for people with intellectual disability.

Interaction with United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)

The DDA was last reviewed in 2009 after Australia ratified UNCRPD. The AHRC has argued the DDA does not ‘fully implement all of the rights in the CRPD’ and does not recognise positive economic, social and cultural rights, or intersectional discrimination in the same way the CRPD does.4

We support JEC’s position to ensure the DDA takes a human rights focused approach to supporting people with disability. We support the legislation citing the UNCRPD, as long as it will be beneficial to people with disability and won’t create confusion on the standard by which discrimination cases can be brought.

It is important to note that many exclusions under the DDA are not compliant with the UNCRPD, especially regarding segregation or separate systems and services for people with intellectual disability. These include supported wages, Australian Disability Enterprises (ADEs) or segregated employment and segregated schools. Professor Tomoya Obokata, the

3 Inclusion International, Women Enabled International, Disability Rights Fund et al (2025) My Body (but not) My Choice: Legal Capacity Violations against Women with Intellectual Disabilities and Women with Psychosocial Disabilities and Recommendations for Action, link here. 4 Commonwealth of Australia (2023) Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, Realising the Human Rights of People with Disability, Volume 4, link here

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United Nations Special Rapporteur on contemporary forms of slavery, visited Australia in 2024 and delivered a report on segregated employment. It stated that “supported employment (is) discriminatory and therefore they should be abolished. The Federal and state/territorial Governments should also actively promote the employment of persons with disabilities in the open market.”8 We do not believe that the Government has responded to this statement.

Positive duty to eliminate discrimination

We support the Disability Royal Commission’s recommendation to introduce a positive duty to eliminate discrimination that would apply to all duty holders under the DDA.

As mentioned, only 3% of DDA complainants identified as having an intellectual disability.9 People with intellectual disability are likely to face greater levels of discrimination and yet are less likely to report this to AHRC.5

The introduction of a positive duty addresses one of the principal deficiencies of the DDA: that is, the protection of a person’s rights depends on that person being prepared to make and pursue a complaint of discrimination on the basis of disability, including having the resources and ability to do so.6

A well-functioning positive duty will have both a preventative effect on stopping discrimination before it occurs, as well as an educative role in supporting duty holders to understand what disability discrimination, adjustments and inclusion can look like. This educative role may also contribute to addressing stigma and bias against people with intellectual disability, in particular incorrect assumptions that people with intellectual disability have little potential or ability to participate in community life.

The model of the Sex Discrimination Act 1984 (Cth) is a useful one in this context, but also illustrates the importance of having resources to support the enforcement of a positive duty on duty holders. The onus of enforcing this duty should not only be on people with disability and their supports but also agencies like AHRC to regulate and enforce.

We also support WWDA’s recommendation to design the duty to scale with organisational size, resources and risk profile, adopting the Victorian Equal Opportunity Act 2010 model of ‘reasonable and proportionate’ obligations.

5 Obokata, T (2024) United Nations Special Rapporteur on contemporary forms of slavery, including its causes and consequences, Country visit to Australia, United Nations Human Rights Special Procedures, November 14-27, link here 6 Commonwealth of Australia (2023) Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, Realising the Human Rights of People with Disability, Volume 4, link here

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

As informed by the UNCRPD, the DSA Consortium works to further the inclusion of people with Down syndrome and intellectual disability in all areas. DDA reform will be an important part of addressing the ongoing exclusion and segregation out community continue to experience.

As mentioned, an important element that will support the DDA to improve inclusion in public life is greater funding and regulatory powers for the AHRC. AHRC must be funded to pursue enforcement action, review and monitor positive duty compliance and educate and inform duty holders about inclusion.

Reasonable adjustments

We have heard from our members that the current definition of reasonable adjustments has caused significant concerns and has impeded their ability to address discrimination where it is occurring. The current legal grey area in the DDA allows agencies to defend minimal action as sufficient. The DRC recommended removing the misconception that reasonableness is an element in deciding whether an adjustment is required.7 The DSA Consortium supports an amendment to remove the word ‘reasonable’ and the addition of a clear definition of what constitutes a meaningful and equitable adjustment.

Inherent requirements

We are supportive of this review considering how inherent requirements apply in the context of open employment for people with intellectual disability. The DDA must work within the context that many people with Down syndrome and intellectual disability are cut out of the open labor market, and additional supports or modifications can be required to support inclusion.

The DDA includes an exception to the prohibition of discrimination relating to work. It is not unlawful for a person to discriminate on the ground of a disability of another person if: (a) the discrimination relates to particular work; and (b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer made reasonable adjustments for the person.7 Though we understand the purpose of this exception, it can be overused by employers who may assume a person with Down syndrome or intellectual disability does not have the ability to do the job required, without further investigation or openness to adjustments.

7 Commonwealth of Australia (2023) Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, Realising the Human Rights of People with Disability, Volume 4, link here

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A frequently used tool in job support programs for people with intellectual disability is job carving or job customisation. This describes a process that matches the work to be done, or a workplace setting, with a person’s unique contributions. These contributions could be a specific set of skills, personality traits or other attributes that would be an asset in the workplace.8 There is a tension between the concept of inherent requirements and a job customisation process that requires further consideration by legal experts to ensure the DDA is acting to further inclusion and not unintentionally support exclusion.

“Companies need to be more inclusive and diverse, not just saying they are. Lowering their job requirement expectations (for example needing a year 12 certificate, university degree etc). It should be about skills not qualifications.”

Michael Cox, Down Syndrome Advisory Network member

Settings

Earlier in this document we refer to submissions from other organisations for a more fulsome discussion on specific topics such as health and migration. However, we would like to offer some reflections on some specific settings.

For some context, the main areas for complaints under the DDA in 2023–24 were the provision of goods, services and facilities (521 complaints), employment (452 complaints) and education (176 complaints).9

Generally, this review focuses on mainstream settings, but it must also be understood that disability specific settings, agencies or services can also perpetrate discriminatory behaviour or systems. This includes settings that have some level of segregation from the community such as disability group homes, day programs or day services and segregated employment settings. It is common that regardless of their own preference, people with Down syndrome and intellectual disability are put on a default pathway towards segregated settings, rather than supported to engage in inclusive, community settings. This can also include agencies like the National Disability Insurance Agency (NDIA). While the National Disability Insurance Scheme Act 2013 (Cth) references human rights, there are reform and procedural changes within the Scheme which unfairly impact certain communities and especially the people with high and complex support needs. For example, NDIS plans are still inaccessible to people with Down syndrome or intellectual disability and procedures such as nominee arrangements can require people to go to a NDIS office, which is not always possible or accessible. Disability specific settings can also refuse to use supported decision making and other evidence based tools that can facilitate meaningful inclusion.

8 Down Syndrome Australia (2022) A Guide for Employers, link here 9 Australian Human Right Commission (2024) Annual Report 2023-2024, Complaints Statistics, link here

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Education

Education settings are a place where children and young people with disability and their families and carers can experience discrimination which impinges significantly on their human rights. The Disability Standards for Education 2005 are designed to interpret the DDA for application in this setting. The DSA Consortium holds only minor concern about the content of the DSE. Unfortunately, we have seen over many years that the DSE has very little impact, either on the State-based education policies or the ways that schools and individual staff apply the DDA.

During September 2025 DSA carried out an education survey for the parents and carers of people with Down syndrome. 1 in 6 families and carers reported experiencing gatekeeping and a lack of access to appropriate teaching supports in classrooms. 1 in 5 families or carers experience teachers with little or no training about disabilities. The concern here is not the legislative measures which prevent discriminatory practices, but the lack of proactive action to eliminate discrimination and the regulatory oversight, training and education to ensure that children and young people with Down syndrome and intellectual disability would be accepted in any school environment.

“I would like my child to attend a mainstream school however there is not enough support allocated for each child with a disability. Also, the majority of teachers and teacher aides are not trained properly in how to successfully include students with disabilities in the mainstream setting.”

Parent of child with Down syndrome, DSA Education survey 2025

Finally, Down Syndrome Australia want to draw attention to discrimination in voting. The current discriminatory practices and attitudes built into the Commonwealth Electoral Act 1918 (Cth) are long standing and are evidence of practices built into community attitudes and legislation. People with Down syndrome and intellectual disability have a right to vote as a vital part of their civic and community participation.

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Further options for reform

Guidance materials for the community

Outside legislative change, there are many strategies that can support inclusion. An essential element of a successful and functioning DDA is accessible and accurate education and information for the community.

In many mainstream and government communication materials, people with physical or sensory disability are featured as examples or personas. But it is vital that people with intellectual disability, including those with intellectual disability, high support needs and communication support needs are also featured. Our members have told us that they are not clear on how some DDA concepts like reasonable adjustments and inclusion in mainstream settings applies to them, and how the process would work for someone with decision making support needs. In order to empower more people with intellectual disability, high support needs and communication needs to address discrimination when it occurs, there must be communications materials that reflect their lived experience.

Human Rights Act

Essential reforms to the DDA can be improved in their operation and effectiveness with the introduction of a Human Rights Act. As shown in Victoria, Queensland, and the Australian Capital Territory that have both discrimination laws and a Human Rights Act (in Victoria called a Charter), the positive rights in a Human Rights Act improve the interpretation and operation of discrimination acts by including the rights such as the right to equality before the law, the right to privacy, and the right to dignified treatment that can be included in determining whether a person has been discriminated against. An Act’s ‘dialogue model’ can be used to challenge laws and regulations that are in themselves discriminatory. Conversely, reformed and modernised discrimination laws help with the operation of a Human Rights Act by complementing the rights outlined in an Act must be enjoyed by all without discrimination. The Disability Royal Commission recommendation of both positive rights and reforms to discrimination law are reflected in their recommendations10, and whilst the Disability Royal Commission were unable to consider a Human Rights Act due to their terms of reference and instead recommended a Disability Rights Act11, the July 2024 joint statement of 12 disability representative organisations advocating for a Human Rights Act12 shows the support for the benefits of a Human Rights Act alongside reforms and modernisation of the DDA. The Parliamentary Joint Committee on Human Rights inquiry into Australia’s human rights framework reported on 30 May 2024 their recommendation for a

10 Commonwealth of Australia (2023) Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, Realising the Human Rights of People with Disability, Volume 4, link here 11 Ibid, page 107 12 Inquiry into Australia’s human rights framework, Parliamentary Joint Committee on Human Rights, Commonwealth of Australia, May 2024, Recommendations 1 to 4

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Human Rights Act19, and that recommendation should be supported as part of the implementation of the Disability Royal Commission alongside reforming the DDA.

Path Forward

The Down Syndrome Australia Consortium would like to see an ongoing commitment to improvement of discrimination legislation and standards to ensure that they are fit for purpose and achieving the human rights goals to which Australians aspire.

In particular, we support:

1. A modernisation and further consultation specifically on the definition of disability under the DDA;
2. Reviews of delegated legislation and whether those instruments are useful in improving outcomes;
3. That the DDA uses the UNCRPD to take a human rights focused approach to supporting people with disability;
4. Full exploration of alternative or complementary approaches to elimination of discrimination and meeting Australia’s international obligations;
5. Requirements that the complaints process is accessible and incorporates supported decision-making;
6. An enforceable positive duty to eliminate discrimination that would apply to all duty holders under the DDA;
7. That ‘reasonable adjustments’ be changed to ‘adjustments’ and the DDA must clearly define what constitutes a meaningful and equitable adjustment;
8. Consideration of how inherent requirements apply in the context of open employment for people with intellectual disability;
9. That the AHRC has regulatory powers to enable them to pursue enforcement action, issue compliance notices, and other audit and review functions;
10. Accessible and accurate information on the DDA, including personas and examples of people with intellectual disability, high support and communication needs.