Experiences of Aboriginal and Torres Strait Islander women and children with disability and the legal system | External submission

14 November 2025

Attorney-General’s Department Disability Discrimination Act Review Team

Dear Attorney-General,

REVIEW OF THE DISABILITY DISCRIMINATION ACT 1992

We refer to the above review. Thank you for the opportunity to make a submission.

Who we are

Wirringa Baiya Aboriginal Women’s Legal Centre is a not-for-profit community legal centre run by Aboriginal and Torres Strait Islander women for Aboriginal and Torres Strait Islander women, children and young people across New South Wales.¹ Our CEO and Governing Committee are Aboriginal women and all positions other than solicitors are identified roles. We have both Aboriginal and Torres Strait Islander staff working as specialist caseworkers. We work closely with and have many ties to the Aboriginal Women’s Advisory Network (AWAN).

Our work

The focus of our Centre is on assisting victims of violence, particularly those who have experienced domestic and family violence, sexual violence, and child sexual assault. In this practice, we regularly provide advice on child protection issues. As we are a culturally safe organisation with ties to the community, we are also regularly contacted about a range of issues including discrimination, police and custodial complaints, health complaints and money issues. Where we can, we provide generalist legal advice and, where we need to, we support our clients with referrals to other community legal centres and private lawyers.

Although we have only recently incorporated a question on disability as a routine part of our intake, we have long observed that many of the women we work with identify as having one or more forms of physical or psychosocial disability or tell us of difficulties they have with

¹ We prefer the term ‘Aboriginal and Torres Strait Islanders’, rather than ‘First Nations’, to ensure that the existence and history of Torres Strait Islander peoples is specifically recognised and acknowledged and that we are specific in referring to the multiple Indigenous nations that make up what is now Australia rather than First Nations people globally. Further, we acknowledge that ‘women’ is a term encompassing all women – including both cisgender and transgender women.

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frameworks or systems in our society that are not made to be accessible to everyone. We also are told by our clients of other barriers to social inclusion that they face, including racial discrimination, family and domestic violence, long-term effects of serious trauma, issues related to substance abuse and poor literacy or illiteracy. Many clients feel that they have not been taken seriously due to the flow-on effects of the difficulties they have faced, for instance when communicating about legal and health issues their distress has been misinterpreted by service workers as them being difficult, troublesome, rude or defiant. We regularly speak to clients who at first present with elevated behaviour and describe feeling that they have been put in the ‘too hard basket’ due to communication barriers with service providers. We wish to state at the outset of our submission that it is a common theme of all workers at our Centre that we are continually impressed by the resilience and determination of the women we work with to create better lives for themselves and their community in the face of great adversity.

People with disability are a diverse group, with many facing additional challenges beyond those presented by navigating society with their disability. Our submissions necessarily focus on the experiences of Aboriginal and Torres Strait Islander women and children, as they are the people we work with and represent. However, by making suggestions specific to our community, we do not mean to diminish the experiences of other members of the diverse disability community and hope that together we can achieve legislative reforms that benefit us all.

We offer our perspective on the best way to reform the Disability Discrimination Act 1992 (Cth) (“the Act” or the “DDA”) in relation to intersectionality. Our focus on intersectionality in these submissions is due to our limited resources and capacity to provide a wider scope of discussion. We broadly support the Disability Royal Commission’s Recommendations.²

We applaud the current effort of the Attorney General focused on reforming the DDA, as well as the express acknowledgment that rather than asking if it should be reformed, the question is how.

Anti-discrimination framework in Australia

The anti-discrimination framework in Australia requires people to explain their experience of discrimination in terms of fixed categories or grounds when they seek remedies through the courts.³ Federally, the legislative framework comprises the Age Discrimination Act 2004 (Cth) (“ADA”), Racial Discrimination Act 1975 (Cth) (“RDA”), Sex Discrimination Act 1984 (Cth) (“SDA”) and the DDA. State and territory laws relating to discrimination, equal opportunity and inclusion and human rights also provide remedies and also largely rely on discrete grounds of discrimination. Our submissions are necessarily confined to amendments to the

² Australian Government, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 28 September 2023) (“Disability Royal Commission – Final Report”). ³ Alysia Blackham and Jeromey Temple, ‘Intersectional Discrimination in Australia: An Empirical Critique of the Legal Framework’, University of New South Wales Law Journal, 2020, 43(3):773–800, p 775–781.

DDA, but we refer to other acts and discuss other types of discrimination in arguing for an intersectional approach.

Anti-discrimination legislation has the dual purpose of providing remedies to individuals who have been discriminated against and of lessening the burden of discrimination on society by fostering systemic and social change. When the DDA was introduced in 1992, neither the Convention on the Rights of People with Disability (CRPD) or the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) existed and attitudes and understanding of social issues related to discrimination have evolved since the inception of the DDA.

Intersectionality in state and territory legislation

Intersectionality, or at least appreciation that discrimination on multiple grounds is complex, is an important part of the international discussion on discrimination.⁴ We consider that intersectionality is a logical and intuitive approach, particularly since the group we work with face racial discrimination constantly as well as many other barriers to equality and inclusion. By acknowledging intersectionality in legislation, we believe that not only will changes in understanding of disability and other protected attributes be acknowledged, but that the legislation will create an environment for further social changes.

As raised in the Issues Paper, at present in Australia only the Disability Rights, Inclusion and Safeguarding Act 2024 (Tas) and the Disability Inclusion Act 2024 (ACT) include definitions of intersectionality.⁵ While tribunals and commissions (including the Australian Human Rights Commission (AHRC)) allow for claims to be brought based on multiple attributes, if a solution cannot be found and the matter proceeds to court, then the aggrieved loses the benefit of the more flexible and less technical approach of tribunal and commission proceedings.

Summary of our recommendations

Allow for claims to be brought on combined attributes with compounded effect of discrimination recognised.
Intersectionality should be defined as the combined effect of attributes of a person that creates interconnected and interdependent systems of disadvantage and/or discrimination. Intersectional forms of discrimination are unique from discrimination against attributes in isolation.
Once the applicant has established discrimination prima facie, the burden of proof should shift to the respondent to show that the discriminatory behaviour was not due to the applicant’s intersectional identity.
- a. Alternatively, if the burden is not shifted after a prima facie case is made, then the Briginshaw test should not be applied in the assessment of the

⁴ For instance, see: Alysia Blackham and Jeromey Temple, ‘Intersectional Discrimination in Australia: An Empirical Critique of the Legal Framework’, University of New South Wales Law Journal, 2020, 43(3):773–800; Dominique Allen, ‘Reducing the Burden of Proving Discrimination in Australia’, Sydney Law Review, 2009, 31:579–605; Sarah Hannet, ‘Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination’, Oxford Journal of Legal Studies, 2003, 23(1):65–86. ⁵ Attorney General’s Department, Disability Discrimination Act Review - Issues Paper (“DDA Issues Paper”) (August 2025).

applicant’s evidence. Instead, the applicant need only establish that the respondent discrimination against them to the standard of reasonableness i.e. reasonable person standard that on the balance of probabilities, discrimination occurred. 4. The ‘causation’ test should not require the applicant to establish that the respondent’s behaviour was due to the applicant’s intersectional identity, rather the applicant should be required only to establish that discrimination occurred. The burden should then shift to the respondent to prove that the discriminatory conduct was not due to the applicant’s intersectional identity. 5. Replace the comparator test with the ‘unfavourable treatment’ test. 6. Recognise Aboriginal and Torres Strait Islander identity as a protected attribute. 7. Allow Aboriginal and Torres Strait Islander people bringing intersectional claims to participate in less formal court proceedings in a system akin to the Indigenous List in family law matters.

Disability Discrimination Act 1992 (Cth) Consultation Questions and Responses

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

We strongly support expressly allowing claims to be brought for multiple or combined protected attributes. This reform would strengthen the DDA by recognising and providing remedies to Aboriginal and Torres Strait Islander women and children with disabilities whose lived experiences of discrimination are not adequately addressed by the current legislation. Further, the reform would also drive systemic change, lessening the social and economic burden discrimination imposes more broadly on both individuals and communities.

Aboriginal and Torres Strait Islander people in Australia with a disability

There are nearly one million Aboriginal and Torres Strait Islander people living in Australia, and at least a quarter of this population is reported to have a disability.⁶,⁷ We note that the true prevalence of disability is likely to be higher in this population due to difficulties in data collection. Our experience tells us that distrust of government services, illiteracy, social disadvantage and cultural understandings of disability that differ from the medical model will mean that survey and census participation will be low.

Our service is for Aboriginal and Torres Strait Islander women and children living in NSW, which is a group we estimate to include at least 185,000 people.⁸ We often speak to women

⁶ Australian Bureau of Statistics (2011–2031), Estimates and projections, Aboriginal and Torres Strait Islander population, ABS Website, https://www.abs.gov.au/statistics/people/aboriginal-and-torres-strait-islander-peoples/estimates-and-projections-australian-aboriginal-and-torres-strait-islander-population/2011-2031 ⁷ Australian Bureau of Statistics, ABS Sources of Disability, 2018–2023, ABS Website, https://www.abs.gov.au/statistics/detailed-methodology-information/information-papers/abs-sources-disability-statistics-2018-2023#data-downloads ⁸ Based on the 2021 Census figure of 278,000 Aboriginal and Torres Strait Islander people in NSW, with 33.3% being below 14 years old and with the estimate that of the 185,426 who are above 14 years old, approximately half will be female or non-binary. The source of the 2021 Census data we used is hosted on the Australian

who have felt dismissed, disrespected, or otherwise have had culturally unsafe experiences when interacting with authorities or other services. We hear from many women that they feel they have been put in the “too hard basket” or that they have “fallen through the cracks”. We consider that it is reasonable to infer that when interacting with services who may otherwise have been able to provide medical assistance or provide information or advice around disability and/or associated discrimination, our clients are not being told about the options available to them.

We will not dwell on the distinctions between the medical and social model of disability as we are not the experts on the distinctions. However, we both appreciate that not all women place importance on having a medically diagnosed disability and we also suspect that some others may not have enough access to quality care to be provided with support from medical and allied health services, particularly those with limited access to medical services such as Aboriginal women in remote and rural areas or disadvantaged urban settings. Given the extent of non-lethal strangulation and blunt force trauma in domestic and family violence, we suspect that the incidence of acquired brain injury is higher than currently diagnosed in groups of victims-survivors. Much of our work is with assisting clients in accessing the Victims Support Scheme administered by Victims Services under the Victims Rights and Support Act 2013 (NSW), which means that we often speak to women around the time of their first contact with a counsellor. Our experience has also been hearing from women who describe being unaware of having a diagnosable disability until they have spoken with a counsellor or other allied health operator about their experiences of violence.

In our practice, we often speak to women who describe experiences of discrimination relating to their being Aboriginal and/or Torres Strait Islander, being women and having one or more disabilities. Their experiences have most often occurred in relation to ‘provision of goods, services and facilities’ and ‘provision of accommodation’. Most of the women we work with are also from financially disadvantaged backgrounds. Further, we speak to many victim-survivors of domestic and family violence, elderly women, women in custody and women with literacy issues. By explicitly acknowledging and addressing the intersectionality of these factors, and how their confluence creates compounding and unique experiences of discrimination, we consider that the DDA will be greatly strengthened in providing remedies to individuals and in lessening the burden of discrimination in Australia.

Aboriginal and Torres Strait Islander women’s unique barriers to remedies

While all forms of racism are unacceptable, discrimination against Aboriginal and Torres Strait Islander peoples is a unique type of racial discrimination. Not only does it involve a denial of the individual victim’s equality and dignity, but, as it arises from a history of colonial oppression and exists in a social climate where that history is still not fully recognised in Australia, it can also be experienced as a denial of Aboriginal and Torres Strait Islander peoples’ sovereignty and self-determination.

Bureau of Statistics Website: https://www.abs.gov.au/articles/new-south-wales-aboriginal-and-torres-strait-islander-population-summary.

Due to the nature of our centre and services, our clients are often financially disadvantaged and experiencing domestic and family violence. Further, when an individual bringing a claim has a psychosocial disability that impedes their ability to communicate their experience of discrimination to others, they are particularly disadvantaged by the current discrimination law system. Allowing claims to be brought for multiple or combined protected attributes will go some way towards addressing this by erasing the need to bring complicated legal arguments addressing multiple pieces of legislation.

Aboriginal and Torres Strait Islander women with disabilities face a range of barriers in bringing discrimination claims. The most common barriers are intergenerational trauma, financial disadvantage, family and domestic violence, low literacy levels, high levels of substance abuse, vulnerability to homelessness,⁹ and fear of child removal.¹⁰ We refer to the discussion by the Disability Royal Commission about evidence they heard that disability discrimination is further heightened for Aboriginal women.¹¹ We note as well that research commissioned by the Disability Royal Commission showed that Aboriginal and Torres Strait Islander parents with disability were more likely to have their children removed.¹²

Argument for claims being brought on combined attributes

We agree with Blackham and Temple’s (2020) observation that *“there is a fundamental disconnect between the legal framework … and how people actually experience discrimination”.*¹³ The experiences described to us are not those of women with disability who happen to be Aboriginal and/or Torres Strait Islander, instead they are those of Aboriginal and/or Torres Strait Islander women who live with disability and often multiple other protected attributes. The women’s multiple attributes are intrinsic parts of their identities and the discrimination they face may be exacerbated by their having multiple attributes, rather than that they experience discrimination on the basis of each protected attribute. That women with disabilities experience multiple forms of discrimination is recognised in Article 6 of the Convention on the Rights of Persons with Disabilities (“CRPD”) which states that *“women and girls with disabilities are subject to multiple discrimination, and in this regard [State Parties] shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms.”*¹⁴

Allowing for claims based on multiple attributes will bring Australia’s anti-disability discrimination legislation more in line with the CRPD. This reform will also promote the

⁹ Australian Bureau of Statistics (27 June 2023), Aboriginal and Torres Strait Islander peoples experiencing homelessness, ABS Website: https://www.abs.gov.au/articles/aboriginal-and-torres-strait-islander-peoples-experiencing-homelessness ¹⁰ Australian Government, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 28 September 2023) (“Disability Royal Commission – Final Report”). ¹¹ Disability Royal Commission – Final Report: Volume 9, First Nations people with disability, pg 40. ¹² Terri Libesman, Paul Gray, Eloise Chandler, Linda Briskman, Aminath Didi & Scott Avery, Parents with disability and their experiences of child protection systems, Report prepared for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, July 2023, pgs 3 and 26. ¹³ Alysia Blackham and Jeromey Temple, ‘Intersectional Discrimination in Australia: An Empirical Critique of the Legal Framework’, University of New South Wales Law Journal, 2020, 43(3):773–800, p 774. ¹⁴ Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force for Australia 17 July 2008).

understanding that where a person has more than one protected attribute, the discrimination they experience can be unique or compounded. We argue that when the aggrieved person is not only disabled but Aboriginal and/or Torres Strait Islander, that in the current political and social climate of Australia it will never be entirely possible to argue that their First Nations identity is not part of their experience of discrimination. We consider that discrimination on the basis of disability that an Aboriginal and/or Torres Strait Islander woman faces is not just additive but compounded. That is, there are not separate components of the discriminatory behaviour attributable to disability, Aboriginal and/or Torres Strait Islander status, and gender. Instead, there is a unique type of discrimination against an Aboriginal and/or Torres Strait Islander woman with disability. This understanding fits with empirical and qualitative research showing that intersectional experiences of discrimination are unique from discrimination based on individual attributes.¹⁵ Allowing for claims based on multiple attributes will mean Australia is taking an important step toward fulfilling its commitment made in ratifying the CRPD. Further, it will directly address the disconnect between the legal framework and the lived experience of Aboriginal and Torres Strait Islander women with disabilities.

Recommendation 1

Allow for claims to be brought on combined attributes with compounded effect of discrimination recognised.

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

A primary concern from our perspective is that the barriers to bringing a claim are too high and that the burden of protecting their own rights is placed firmly on the individual. Considering the well-documented marginalisation of Aboriginal and Torres Strait Islander women, we consider that multiple changes must be made to create a more equitable society and to provide Aboriginal and Torres Strait Islander women with a means to enforcing their own rights if that is their last resort. In this section, we touch on many other suggested reforms and provide our perspective on how implementing these will assist those with intersecting identities and who face compounding discrimination, including Aboriginal and Torres Strait Islander women.

Reduce burden of proof for complainant

At present, if an individual experiences discrimination on the ground of disability, the burden is on them to enforce their own rights. As we have tried to emphasise, many of our clients are facing multiple difficulties and cannot also bear the burden of enforcing their individual rights. As a generalisation, if a person were to experience discrimination due to having a disability, being a woman, and having Aboriginal and/or Torres Strait Islander status, then they would need to decide which piece or pieces of legislation to bring their claim under, as

¹⁵ Alysia Blackham and Jeromey Temple, ‘Intersectional Discrimination in Australia: An Empirical Critique of the Legal Framework’, University of New South Wales Law Journal, 2020, 43(3):773–800.

well as have the means to pursue the complaint. To bring a complaint, therefore, can be considered both a social and a financial privilege. We do not believe this system is fair or that this considers the needs of the most marginalised people in our society, who also may often be those most in need of remedy.

We have read the arguments of others saying that the current causation test and delegation of burden of proof mean that the aggrieved is currently required to prove the reason why the respondent treated the aggrieved the way they did and that this places an unfair burden on the aggrieved. We agree.

This current system places an unfair burden on the applicant, both in being required to bring claims under multiple pieces of legislation without intersectionality being recognised,¹⁶ and in carrying the full evidentiary burden for the discrimination claim. As was pointed out by Allen, the evidence required to prove discrimination is usually in the respondent’s possession and the courts apply the “Briginshaw test” by considering the nature of the allegation and the consequences which may accompany accepting the allegation.¹⁷,¹⁸

A key reason for reducing the burden of proof is that people being discriminated against are often the most marginalised in society and with the fewest resources to support them. Aboriginal and Torres Strait Islander peoples are among the most marginalisation within our society. Raising further barriers within the legal system only serves to further their disadvantage.

We therefore propose that when considering intersectional discrimination claims, the applicant need only establish their case prima facie before the burden shifts to the respondent.

Recommendations 2, 3 and 4

Once the applicant has established discrimination prima facie, the burden of proof should shift to the respondent to show that discrimination has not occurred.

The ‘causation’ test should not require the applicant to establish that the respondent’s behaviour was due to the applicant’s intersectional identity. Rather, the applicant should be required only to establish that unfavourable treatment occurred. The burden should then shift to the respondent to prove that the unfavourable conduct was not due to the person’s intersectional identity.

¹⁶ Alysia Blackham and Jeromey Temple, ‘Intersectional Discrimination in Australia: An Empirical Critique of the Legal Framework’, University of New South Wales Law Journal, 2020, 43(3):773–800, p 774. ¹⁷ Briginshaw v Briginshaw (1938) 60 CLR 336. ¹⁸ Dominique Allen, ‘Reducing the Burden of Proving Discrimination in Australia’, Sydney Law Review, 2009, 31: 579–605, 581.

Replace the “comparator” test with the “unfavourable treatment” test

We prepared detailed submissions for the NSW Law Reform Commissions review of the Anti-Discrimination Act 1977 (NSW) (“ADA”) on the use of the comparator test in direct discrimination claims. In this present submission on the DDA, we will provide only limited submissions on the comparator test. We recommend wide consultation with people with lived experience of disability and disability experts on this matter.

At present, when bringing a claim under the DDA, the comparator test contained in s 5(1) of the DDA is used to determine whether the applicant has been discriminated against based on disability.

To replace the comparator test, we favour the ‘unfavourable treatment’ test that is used in Victoria and the ACT.¹⁹ In applying this test, the assessor focuses on “an analysis of the impact of [the] treatment on the person complaining of it”.²⁰ We agree with the Disability Royal Commission that *“[i]t should be enough for a person with disability to show they have been treated unfavourably or unfairly, without the additional element of proving that a person without the same disability would have been treated more favourably in the same circumstances.”*²¹ To do this, the phrase “less favourable” could be replaced with the phrase “unfavourable” as per the Disability Royal Commission’s recommendation 4.23.²²

We consider that this is a particularly important change for Aboriginal and Torres Strait Islander women. Given the multiple barriers they already face in bringing a claim, there should be no comparator test. Further, we submit that since the only reasonable comparator for an Aboriginal and Torres Strait Islander woman with a disability would be one without a disability, and that given the discrimination that Aboriginal and Torres Strait Islander peoples face, it is not possible to simply subtract discrete elements of a person’s identity. The compounding discrimination that Aboriginal and Torres Strait Islander women with disability face is not suitable for assessment using a comparator test. Instead, we support the “less favourable” treatment test.

Recommendation 5

Replace the comparator test with the ‘unfavourable treatment’ test.

Aboriginal and Torres Strait Islander status as a compounding factor in discrimination

As stated above, any experience of racism is a denial of equality and dignity. However, when Aboriginal and Torres Strait Islander peoples people experience racism, it is dehumanising in the larger sense of denial of sovereignty and colonial history. This is again a compounded effect. Recognition of Aboriginal and/or Torres Strait Islander status as a compounding

¹⁹ Equal Opportunity Act 2010 (Vic), s 8. ²⁰ Slattery v Manningham City Council (Human Rights) [2013] VCAT 1869, [53]. ²¹ Disability Royal Commission – Final Report: Volume 4, Realising the human rights of people with disability, pg 302. ²² Ibid.

factor with disability may therefore assist in lessening discrimination against Aboriginal and Torres Strait Islander peoples in Australia.

Articles 2 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) sets out that Indigenous peoples have a right to non-discrimination; Article 22 requires States to pay ‘particular attention’ to the rights and needs of Indigenous persons with disabilities.²³

More than once, we have spoken to Aboriginal women who have experienced discrimination which was compounded by their disabilities, age, gender and race. In one matter, an elderly Aboriginal woman who experienced hearing loss was struggling to hear what a retail clerk was telling her about why he was not assisting her with a certain transaction. The woman could hear well enough for some aspects of the conversation but could not make out everything the clerk was saying. He became very frustrated with her because she was not leaving his counter and described her as a bully to other customers, making out to them that she was creating a problem. The woman experienced humiliation and confusion. She felt certain that the clerk was discriminating against her on the basis of her status as an Aboriginal woman with a disability.

Recommendation 6

Specific recognition of Aboriginal and Torres Strait Islander identity as a protected attribute.

Navigating the system: Improving access to justice for Aboriginal and Torres Strait Islander women with disability facing discrimination

As is acknowledged in the DDA Issues paper, it is already possible to lodge a complaint on multiple grounds with the Australian Human Rights Commission (AHRC), however it is the “less flexible and more technical legal nature of the courts” that creates challenges when the matter reaches a court. The purpose of amending the DDA to allow claims to be brought for multiple or combined protected attributes is to account for the rigidity and technicality of courts.²⁴

It may be that disabled people who are also Aboriginal and/or Torres Strait Islander are making it to the AHRC, but no further. The question is whether this is because their matters are being satisfactorily resolved there, or because the court process itself under this current legislation is a deterrent to claims being brought.

²³ United Nations, United Nations Declaration on the Rights of Indigenous Peoples, UN Doc A/RES/61/295, arts 2 and 22. ²⁴ Disability Discrimination Act Issues Paper, pg 28.

Recommendation 7

Allow Aboriginal and Torres Strait Islander people bringing intersectional claims to participate in less formal court proceedings in a system akin to the Indigenous List in family law matters.

Conclusion

While our submissions have been limited to the issue of intersectionality and related topics, we trust that our perspective as an organisation run by Aboriginal women for Aboriginal and Torres Strait Islander women and children will be valued.

If you have any questions about this submission or would like to discuss it further, please call us on redacted: s47F - personal privacy or email:

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Yours faithfully,

Wirringa Baiya Aboriginal Women’s Legal Centre

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Per: redacted: s47F - personal privacy

Principal Solicitor