NDIA Accountability Project

Strengthening the Disability Discrimination Act through positive duty and adjustments

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REVIEW OF THE DISABILITY DISCRIMINATION ACT

Submission prepared by: redacted: s47F - personal privacy NDIS Policy Manager
redacted: s47F - personal privacy Disability Employment Policy Manager
Peter Bacon, Chief Executive Officer
Disability Employment Australia
Email: redacted: s47F - personal privacy
Phone: redacted: s47F - personal privacy
Website: www.disabilityemployment.org.au\ Date: November 2025

About Disability Employment Australia

Disability Employment Australia (DEA) is the national peak body representing providers of disability employment services. For over 25 years, DEA has championed the right of people with disability to access meaningful and equitable work in the open labour market.

Our membership represents around 70% of providers and over 90% of the national caseload, with the majority being not-for-profit organisations delivering Disability Employment Services, Inclusive Employment Australia programs, NDIS supports, and community-based initiatives.

DEA works collaboratively with government to inform and influence disability employment policy. We have contributed to major reforms across the sector, including funding model transitions, assessment frameworks, and the development of national strategies to advance inclusive employment.

Disability Employment Australia acknowledges the traditional owners of country throughout Australia and their continuing connection to land and community. We pay our respect to them, their cultures, and to their elders both past and present.

Disability Employment Australia is committed to fostering a culture of inclusivity, respect, and empowerment. Our aim is to celebrate differences and to create equal opportunities for all, irrespective of ability, background, or identity.

Table of Contents

Executive Summary

Our submission focusses on the Disability Discrimination Act (DDA) in the context of employment and the vital role it plays in achieving employment equity for people with disability.

DEA believes that the DDA has the potential to simultaneously highlight and direct organisations towards inclusive practices while simultaneously providing an effective mechanism for recourse should it be required.

To achieve this, the Act must uncompromisingly promote and protect the rights of people with disability, while ensuring no additional unintended barriers to employment are accidentally created in the process. As we outline in our discussion and subsequent recommendations, we believe this is best achieve through promoting positive duty and ensuring that this Act and it’s supporting resources, guidance, and training are available in easy to understand, jargon-free plain language that can be accessed, understood, and implemented by anyone without the need for legal knowledge or representation.

Recommendations

  1. Define disability in the Act with explicit reference to the CRPD and human rights framing.
  2. Co-create the definition of disability with people with disability and their representative organisations.
  3. Amend the DDA to expressly recognise employment as central to equality and inclusion, ensuring rights to equitable treatment at work are clear, enforceable, and consistent with Australia’s obligations under the UN CRPD.
  4. Strengthen obligations to provide workplace adjustments with increased government support to meet such obligations, including through adequate funding and protecting Job Access and the Employment Assistance Fund.
  5. Replace the current test with a single-step standard focused on treatment because of disability.
  6. Shift the burden of proof so that duty holders must justify their actions once a prima facie case is made.
  7. Simplify the definition of indirect discrimination to focus on disadvantage linked to disability. Replace the reasonableness test with a legitimate and proportionate standard, supported by clear guiding factors. Remove the current compliance wording (“does not or would not comply or is not able or would not be able to comply”) and replace it with plain language focused on barriers and disadvantage.
  8. Establish a positive duty applying to all duty holders under the Act.
  9. Link the duty to regular reporting requirements that measure cultural change as well as compliance.
  10. Provide clear guidance, training and enforcement powers to ensure the duty is practical and effective.
  11. Create a stand-alone duty to provide adjustments, separate from the positive duty.
  12. Apply the adjustments duty across all forms of work, including non-traditional arrangements such as gig work, internships, volunteering, and government as an employer. Ensure that people who are self-employed have equal access to adjustments through government programs, funding schemes, and client or platform relationships.
  13. Replace the term “reasonable adjustments” with “adjustments,” limited only by a reformed unjustifiable hardship defense.
  14. Adopt the Disability Royal Commission’s proposed amendment on unjustifiable hardship, aligning with CRPD principles and requiring fairness, transparency, and consultation.
  15. Require employers to clearly define inherent requirements and consider adjustments, redesign, or technology before concluding a person cannot perform them.
  16. Establish consistent national protections against exclusionary discipline in employment and training, aligned with best practice across jurisdictions.
  17. Confirm that no exemptions apply to harassment or offensive behaviour in the workplace.
  1. Recognise disability harassment as a distinct form of discrimination under the DDA, consistent with the treatment of sexual harassment in the Sex Discrimination Act, to provide clear obligations for employers and stronger protections for people with disability.
  2. Confirm that obligations to provide adjustments and support inclusive practice apply at all stages of employment, including recruitment, retention, training, promotion, and career development.
  3. Accompany the duty with plain-language guidelines, training, and capacity-building resources, linked to reporting mechanisms, so that obligations are practical and deliverable in all workplaces.
  4. Replace prescribed training providers with minimum outcome standards that allow wider access.
  5. Provide practical guidance materials in accessible formats, covering adjustments and systemic barriers.
  6. Support the development of a national Human Rights Act

Guiding Principles

Our approach to this review is shaped by the following principles:

  • Structural change: The Act should address structural barriers through clear obligations on systems and duty holders, not just provide remedies after discrimination has occurred.
  • Cultural change: The Act should help shift attitudes arounds disability, so inclusion is seen as ordinary in workplaces and the community.
  • Shared responsibility: Inclusion should be the role of duty holders and systems, not left to individuals with disability.
  • Plain language: The Act should be written in terms that are easy to understand and apply in practice.
  • Inclusivity: The definition of disability should be broad and cover evolving, episodic, and intersectional experiences.
  • Equal standards: Obligations should apply to all duty holders, with no exemptions.
  • Human rights alignment: Reform should be guided by the UN CRPD and support both cultural and legal change.

Defining Disability

We support the inclusion of a definition of disability that aligns with a human rights framing^[1]. This includes recognising disability as the outcome of interaction between impairment, the built environment, and social attitudes, rather than a fixed or medicalised state. Such an approach shifts responsibility away from individuals and on to systems and employers to remove barriers.

Recommendation:

  1. Define disability in the Act with explicit reference to the CRPD and human rights framing.
  2. Co-create the definition of disability with people with disability and their representative organisations.

Importance of Employment Considerations in the DDA

From the outset, employment must be recognised as a human right that is central to both equality and inclusion^[2]. It provides income, independence, social connection, and the ability to participate in community life. For people with disability, barriers to employment remain entrenched, including discriminatory workplace practices, inflexible policies, and stigmatising assumptions about capacity. The DDA plays a critical role in removing these barriers and it must continue to evolve so it can keep pace with the evolving

^[1] Disability Advocacy Resource Unit. (2019). Introducing the Human Rights Model of Disability. ^[2] United Nations. (2007). Convention on the Rights of Persons with Disabilities: Article 27 - Employment

barriers people with disability experience and are likely to continue to experience for the foreseeable future. In doing so, the Act must also avoid unintentionally creating and reinforcing barriers by using deficit language that reinforces stereotypes or assumptions of incapacity, which have historically contributed to low expectations of people with disability in employment.

A framework for equity in employment must go beyond access to work alone. As is outlined in Article 27 of the CRPD, people with disability have the right not only to enter employment but to build real careers. This requires the opportunity to exercise choice over career paths and receive fair payment for work performed as well as equal access to leadership pathways, training, and career development. Accessibility and inclusion must extend across every level of work so that workplaces reflect the full diversity of the community. Changing community attitudes is not only about enabling entry into jobs, but about ensuring people with disability are recognised as leaders and professionals who can thrive in their chosen career.

The DDA must also address intersectionality and compounded barriers in employment. Women with disability, First Nations people with disability, people with disability from culturally and racially marginalised communities and LGBTIQ+ people face intersecting forms of discrimination. The Act should make clear that obligations extend to addressing these layered barriers, so that equity in employment is not considered in isolation toother forms of disadvantage.

Embedding employment considerations throughout the Act is essential to ensure that rights to equal treatment at work are clear, enforceable, and consistent with Australia’s obligations under the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD). This approach would help close long-standing gaps in participation and promote a culture of inclusion across Australian workplaces.

Recommendation:

  1. Amend the DDA to expressly recognise employment as central to equality and inclusion, ensuring rights to equitable treatment at work are clear, enforceable, and consistent with Australia’s obligations under the UN CRPD.
  2. Strengthen obligations to provide workplace adjustments with increased government support to meet such obligations, including through adequate funding and protecting Job Access and the Employment Assistance Fund.

Discrimination Tests and Proof

Tests for discrimination should be simple and practical. The Act should focus on whether a person has been treated unfavourably because of disability. A single-step test would give people with disability clearer protection and make obligations easier for employers and other duty holders to understand. The emphasis should be on the impact of treatment, not on proving intention.

At present, the burden of proof sits too heavily with people with disability. Once a claim has been made the duty holder should be required to respond and account for their actions. This would encourage employers to uphold their obligations under the Act.

Indirect discrimination in the workplace often occurs as a result of rigid practices and policies. The law should describe indirect discrimination in plain terms, with a clear focus on whether the practice or policy creates disadvantage connected to disability. Current drafting is overly legalistic and should be replaced with language that can be understood and applied without legal expertise. An example of such drafting includes: “does not or would not comply or is not able or would not be able to comply.” This wording is confusing in practice and makes the test inaccessible to both employers and people with disability. The law should describe discrimination in plain terms, focusing on whether a rule or requirement creates a barrier connected to disability. This is particular important as the Act must not inadvertently create a barrier to employing people with disability by becoming too complex and confusing and therefore leaving employers unwilling to pursue employment equity for fear of unintentionally and unknowingly failing to uphold an obligation.

The standard for assessing indirect discrimination should be legitimate and proportionate. This approach aligns with international human rights law and offers a better balance between protecting rights and recognising employer obligations. A short list of guiding factors could sit alongside the standard to help employers apply it consistently, without creating unnecessary complexity. Even with stronger duties, people with disability must still have access to practical remedies when breaches occur. At present, complaint pathways are slow, costly, and intimidating, leaving many people without real recourse. The DDA must ensure that remedies are timely, affordable, and accessible, so that enforcement is not only theoretical but practical for people with disability. Without this, the burden will continue to fall on individuals to carry discrimination claims at personal and financial cost.

Recommendation:

  1. Replace the current test with a single-step standard focused on treatment because of disability.
  2. Shift the burden of proof so that duty holders must justify their actions once a prima facie case is made.
  3. Simplify the definition of indirect discrimination to focus on disadvantage linked to disability. Replace the reasonableness test with a legitimate and proportionate standard, supported by clear guiding factors. Remove the current compliance wording (“does not or would not comply or is not able or would not be able to comply”) and replace it with plain language focused on barriers and disadvantage.

Positive Duty to Prevent Discrimination

At present, the DDA places the burden on individuals with disability to prove discrimination after it has occurred. This complaint-based model is reactive, slow, and inaccessible for many people. It leaves systemic barriers untouched and fails to shift responsibility onto those who create or maintain exclusion. To make the Act effective, it must move beyond remedying harm after the fact and proactively motivate duty holders to prevent discrimination from occurring.

The DDA should therefore establish a positive duty on all duty holders, including governments, employers, educators, and service providers. Human rights are universal, so the duty should apply equally to all holders without exemptions or administrative conditions. It would require organisations to design accessible and inclusive workplaces, operating practices, products and services from the outset, so barriers are removed before they cause harm.

The duty must apply regardless of the size of an organisation. Concerns about small employers highlight the need for the Act to be written in plain language and supported by clear guidance. If obligations are clear and practical, both employers and people with disability will understand what is required without needing legal or HR advice. Exemptions in this context are unnecessary.

Enforcement must also be practical. Regulators should have the power to set expectations, monitor compliance, and act when obligations are not met. Organisations should be expected to show how they are meeting their responsibilities, and that information should be clear enough to build trust with people with disability. Guidance and training must sit alongside enforcement, so that duty holders know what is required and have the tools to deliver it.

Recent reforms to the Sex Discrimination Act, which introduced a positive duty to prevent harassment and gave the Australian Human Rights Commission new compliance powers, show how positive duties can be enforced in practice. These reforms highlight the importance of an independent regulator with real authority to monitor compliance and act when obligations are not met.

Enforcement is essential, but cultural change will only take hold if good practice is also recognised. The DDA should create positive incentives for organisations that lead on accessibility and inclusion. This could include public reporting that highlights leaders, accreditation or certification schemes that recognise inclusive employers, and procurement preferences that reward organisations demonstrating best practice.

These measures show that inclusion is not only a legal duty but also a marker of organisational quality and leadership.

The Workplace Gender Equality Act demonstrates how reporting and transparency can drive cultural as well as legislative change. Employers above a certain size are required to report annually on measurable indicators, and this visibility has encouraged organisations to improve over time. A comparable approach under the DDA would ensure organisations are accountable not just for removing barriers, but for building inclusive and accessible cultures over time.

Recommendations

  1. Establish a positive duty applying to all duty holders under the Act.
  2. Link the duty to regular reporting requirements that measure cultural change as well as compliance.
  3. Provide clear guidance, training and enforcement powers to ensure the duty is practical and effective.

Stand-Alone Duty for Adjustments and Inclusion

The obligation to provide workplace adjustments should be set out in the Act as a stand-alone duty. This would give employers and employees clear rights and obligations, separate from the broader positive duty, and avoid reliance on discrimination complaints as the main enforcement tool.

This duty should apply across all forms of work, including self-employment, gig work, unpaid internships, volunteering, and the public sector as an employer. It must be clear that protections extend beyond traditional employment relationships.

The term “reasonable adjustments” should be replaced with “adjustments,” as recommended by the Disability Royal Commission. The qualifier of “reasonable” has too often been used to deny support. Unjustifiable hardship should remain the only limitation, but it must be narrowly defined. DEA supports the Commission’s recommendation to amend this provision, aligning with CRPD principles and ensuring fairness, transparency, and consultation. A hardship should only be considered unjustifiable where the cost clearly outweighs the benefit, and only after consultation with the person with disability. Employers should be required to show evidence of this consultation before relying on the defense.

Further clarity is also needed on the meaning of ‘inherent requirements’. Employers should be required to set out what is genuinely inherent to a role, and to consider whether adjustments, redesign, or technology could enable a person to perform those functions. Narrow or medicalised definitions must be avoided. For example, an employer should not require a driver’s licence where a role does not involve travel that could be undertaken using other forms of public transport and point to point transport. The Act should therefore define “inherent requirements” with reference to the essential outcomes of the role, rather than fixed tasks. It should be clear that tasks can be redistributed where this does not affect the core purpose of the job, and that adjustments must always be considered before an employer concludes a person cannot perform a role.

Exclusionary discipline provisions in the employment context should be addressed to ensure people with disability are not excluded from work or training through disciplinary processes based on assumptions about capacity. The DDA should embed consistent minimum protections in this area, drawing on best practice across jurisdictions. The Act should also confirm that no exemptions apply to harassment or offensive behaviour. All people have the right to work in environments free from harassment and offensive conduct, and this obligation must apply equally to all duty holders. The DDA should recognise disability harassment as a distinct form of discrimination, consistent with the approach taken to sexual harassment under the Sex Discrimination Act. People with disability experience harassment and offensive behaviour

that is directly linked to stigma, assumptions, or hostility about disability. Treating this as a stand-alone form of discrimination would make obligations clearer for employers and service providers and provide stronger protections for people with disability in their working lives.

Obligations under the Act should be understood as covering the full span of employment. That means adjustments and inclusive practice must apply not only at the point of hiring, but also in retention, progression, and career development. Often, we see barriers emerge later in a person’s working life when opportunities for training, promotion, or leadership are overlooked. Clear duties on employers to consider adjustments and inclusive practice across all stages of employment will help ensure that people with disability can build long-term careers, not just access entry-level jobs.

A stand-alone duty should also drive cultural change by normalising adjustments as a routine part of work. Adjustments must not be treated as exceptional or burdensome, but as a standard part of inclusive practice. Embedding this expectation helps shift workplace culture, ensuring that adjustments are viewed as ordinary measures that allow employees to participate on an equal basis throughout their careers.

Recommendation:

  1. Create a stand-alone duty to provide adjustments, separate from the positive duty.
  2. Apply the adjustments duty across all forms of work, including non-traditional arrangements such as gig work, internships, volunteering, and government as an employer. Ensure that people who are self-employed have equal access to adjustments through government programs, funding schemes, and client or platform relationships.
  3. Replace the term “reasonable adjustments” with “adjustments,” limited only by a reformed unjustifiable hardship defense.
  4. Adopt the Disability Royal Commission’s proposed amendment on unjustifiable hardship, aligning with CRPD principles and requiring fairness, transparency, and consultation.
  5. Require employers to clearly define inherent requirements and consider adjustments, redesign, or technology before concluding a person cannot perform them.
  6. Establish consistent national protections against exclusionary discipline in employment and training, aligned with best practice across jurisdictions.
  7. Confirm that no exemptions apply to harassment or offensive behaviour in the workplace.
  8. Recognise disability harassment as a distinct form of discrimination under the DDA, consistent with the treatment of sexual harassment in the Sex Discrimination Act, to provide clear obligations for employers and stronger protections for people with disability.
  9. Confirm that obligations to provide adjustments and support inclusive practice apply at all stages of employment, including recruitment, retention, training, promotion, and career development.
  10. Accompany the duty with plain-language guidelines, training, and capacity-building resources, linked to reporting mechanisms, so that obligations are practical and deliverable in all workplaces.

Training and guidance

The review of the act raises questions around training. Training is intended to make sure duty holders, and their staff understand their obligations, and to build the skills needed to provide adjustments, ensure accessibility, and support inclusive practice in workplaces and services.

The review specifically asks whether specific training organisations should be prescribed under the regulations. DEA does not support this approach. Naming providers in legislation would restrict employers and workers to a fixed list, regardless of whether other capable providers could meet their needs. This would reduce flexibility, limit access in some regions, and create a risk of higher costs if competition is reduced.

A better approach is to set minimum standards for training outcomes. Any organisation that can meet those standards should be able to deliver the training. This would encourage competition, keep costs

manageable, and ensure that training is available in more places. It would also allow employers to choose providers who understand their industry context, rather than relying on a single prescribed option.

Minimum standards for training outcomes could be set by government in consultation with people with disability, employers, and training experts. These standards would focus on the core outcomes that training should deliver, such as understanding rights and obligations under the DDA, knowing how to provide adjustments, and recognising and addressing barriers in practice. Oversight could be provided through guidance, accreditation options, and feedback mechanisms, so that training remains practical, accessible, and consistent across different providers.

Guidance materials are also critical if the Act is to be applied consistently. Duty holders need resources that are clear and usable in day-to-day practice. Guidance should cover adjustments, inclusive practice, and how systemic barriers can be addressed. That information must be available in formats that suit different needs and be easy to use in day-to-day practice. If workplaces have straightforward guidance and accessible training, they will not need HR teams or lawyers to interpret the law for them. This is particularly important for small employers. Clarity in the law, backed by outcome-based training, removes the need to scale obligations according to size.

Guidance materials should also go beyond technical compliance. They should include practical examples that normalise inclusion and challenge low expectations about the capacity of people with disability. Training should support cultural as well as legal change, focusing on inclusive practice and systemic approaches, not just awareness.

Recommendations

  1. Replace prescribed training providers with minimum outcome standards that allow wider access.
  2. Provide practical guidance materials in accessible formats, covering adjustments and systemic barriers.

Beyond the DDA: Towards Full Inclusion

The DDA is important, but it is insufficient on its own. Its structure is to respond to infringements after they have occurred, which continues to place the responsibility on individuals with disability, and sometimes their employers, rather than on systems that create barriers.

While there are many positive outcomes that proposed reforms could achieve, the act does not go far enough in proactively seeking to promote inclusion and best practice. Accessibility should be built into the way products are designed, workplaces are organised, and how public services are delivered. Regulating accessibility at the point of design avoids the likelihood of disability discrimination occurring in the first place.

The focus needs to be on practical steps that make participation part of everyday working life. Programs such as Inclusive Employment Australia and Job Access must provide tangible, individualised support to employers and workers. To further promote employment equity, the language used when promoting hiring workers with disability must be carefully considered so that it does not over-complicate what can be a straightforward process. We do not want to provide a disincentive to employers to employ people with disability, but rather to provide simple and transparent rules and guidance that enable and empowers to act inclusively.

The DRC’s terms of reference recognised that Australia has obligations under the CRPD. It found that these rights are not sufficiently incorporated into law or practice. Governments, legislators, and policy makers are not properly considering the rights of people with disability when making decisions, and people with disability are not consistently involved in those processes. Nor are they being held to account for their inaction and exclusion in a meaningful and impactful way that leads to positive change and improved practice over time.

For this reason, DEA favours the co-design of a federal Human Rights Act. This act would complement the DDA and strengthen its ability to proactively identify systemic issues that lead to inequity.

We have preferenced this option over a Disability Rights Act, as was proposed by the DRC. A Human Rights Act recognises that all people have rights by virtue of their humanity, not because of disability or

impairment. Carving out Disability Rights as specific can run the risk of the very ableism that we are seeking to eliminate. In short, people with disability have rights because they are human, not because they are disabled.

International scrutiny has also highlighted the gaps in Australia’s human rights framework. The UN Special Rapporteur on contemporary forms of slavery recently recommended that Australia adopt a national Human Rights Act and strengthen the system-level duties of government and business. This aligns with the Disability Royal Commission’s conclusion that discrimination law alone is not enough. For disability employment, it reinforces the need for the DDA to operate within a broader rights framework that prevents exclusion before it occurs. A strong rights framework also shifts community attitudes by setting clear expectations of inclusion across public life, including in employment.

The aim is not only to prevent discrimination but to create the conditions for people with disability to flourish in real jobs. Achieving this means moving beyond a complaint-driven model to one that proactively removes barriers, regulates accessibility at the system level, and embeds disability rights across all aspects of public life.

Recommendation:

  1. Support the development of a national Human Rights Act

Summary

The DDA should address both structural and cultural barriers, shifting responsibility from individuals to systems and duty holders, and ensuring the Act is written in plain language. We are calling for a broad, human rights-aligned definition of disability, co-created with people with disability, understanding importance of employment as a fundamental human right. We recommend that the DDA explicitly recognises employment as central to equality and inclusion, strengthen workplace adjustment obligations, and ensure these are adequately supported by government programs.

DEA proposes simplifying discrimination tests, shifting the burden of proof to duty holders, and introducing a positive duty for all organisations to proactively prevent discrimination. We also recommend establishing a stand-alone duty for workplace adjustments, removing the “reasonable” qualifier, and ensuring protections extend across all forms of work, including non-traditional arrangements. We stress the need for practical, accessible remedies, clear guidance, and training for employers, as well as public reporting and incentives for organisations to lead in accessibility and inclusion. DEA supports the development of a national Human Rights Act to complement the DDA, aiming to embed disability rights within a broader framework that proactively removes barriers and fosters genuine inclusion in Australian workplaces.