Submission to Commonwealth Attorney-General’s Department about Review of Disability Discrimination Act

14 November 2025

About the Submitter

JFA Purple Orange is an independent, social-profit organisation that undertakes systemic policy analysis and advocacy across a range of issues affecting people with disability and their families.

Our work is characterised by co-design and co-production, and includes hosting a number of user-led initiatives.

Much of our work involves connecting people with disability to good information and to each other. We also work extensively in multi-stakeholder consultation and collaboration, especially around policy and practice that helps ensure people with disability are welcomed as valued members of the mainstream community.

Our work is informed by a model called Citizenhood.

JFA Purple Orange

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Telephone: redacted
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Website: www.purpleorange.org.au\ Facebook: redacted

Contributors

James Murphy

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We acknowledge the Kaurna people as the Traditional Custodians of the land on which our head office resides, and where this document was created. We pay our respects to Kaurna Elders past and present.

1. Recommendations
2. Introduction
3. How should disability be defined in the Disability Discrimination Act?
4. What factors should be considered in developing a new definition of disability?
1. Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes?
1. 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?
- 6.1. Include intersectionality in the objects or principles of the Act
- 6.2. Data collection and monitoring

What test should be used to ensure that the definition of direct discrimination is easy to understand and implement for both duty holders and people with disability, and why? 32

7.1. Clarity for complainants
7.2. Easier for duty holders
7.3. Alignment with DRC recommendations and other laws

How should the burden of proof be addressed in the Disability Discrimination Act? 34

8.1. Fairness and practicality
1. How could the definition of indirect discrimination be amended to ensure that it is easy to understand and implement for people with disability and duty holders?
- 9.1. Use plain language examples
- 9.2. Align with updated state laws
10. Should the reasonableness element in the definition of indirect discrimination be: (a) removed, (b) retained and supplemented with a list of factors to consider, (c) replaced by a legitimate and proportionate test, or (d) other?
11. Should the language of ‘does not or would not comply, or is not able or would not be able to comply’ be removed from the definition of indirect discrimination?
12. Should the Disabilities Convention be included in the objects provision of the Disability Discrimination Act?
1. Should the Disability Discrimination Act be expressly required to be interpreted in a way that is beneficial to people with disability, in line with human rights treaties?

If there was a positive duty in the Disability Discrimination Act, who should it apply to? 42

14.1. Services providers and businesses
1. Are there lessons from the operation of the positive duty in the Sex Discrimination Act that could be incorporated into a positive duty in the Disability Discrimination Act?
- 15.1. Regulatory guidance and collaboration
- 15.2. Enforcement mechanism
- 15.3. Phased implementation and support 15.4. What costs, benefits and other impacts would duty holders experience in meeting a positive duty under the Disability Discrimination Act? If you are an existing duty

holder under the Act, please specify how you think meeting a positive duty would impact you. 46 15.5. Reduced complaints and litigation ………………………………………………………….. 46 15.6. Improved productivity and employee engagement …………………………… 47 15.7. Innovation and market benefits ……………………………………………………….. 47 15.8. Reputation and environmental, social, and governance impacts …………………. 47 15.9. Cultural and societal impact …………………………………………………………………… 48 16. Should there be exceptions or limits to the application of a positive duty? ………….. 48 17. Would the creation of a stand-alone duty to provide adjustments better assist people with disability and duty holders to understand their rights and obligations? ……….. 50 18. Should the scope of the duty to provide adjustments apply only to the existing areas of public life covered by the Disability Discrimination Act, or extend to other contexts? ….. 51 19. Would removing the word ‘reasonable’ from the term ‘reasonable adjustments’ to align the language with the legal effect create any unintended consequences? ……………… 52 20. What is your preferred approach to achieving greater fairness and transparency in claims of unjustifiable hardship: a. the Disability Royal Commission amendment as proposed b. a new definition of unjustifiable hardship c. other? Please expand on your response. …. 53 21. What are your views on amending the Disability Discrimination Act to consider the nature and extent of any adjustments made and encourage consultation between prospective or current employers and prospective or current employees before making employment decisions? ………………………………………………………………………………………….. 55 22. Are there other amendments to the Disability Discrimination Act that could support engagement between prospective or current employers to better understand the inherent requirements of a job and should any other amendments be made to the definition of inherent requirements, including factors that should be considered when deciding whether a person could carry out the inherent requirements of a job? ……………………………………… 57 23. Should the concepts of exclusion and exclusionary discipline be defined in the Disability Discrimination Act? …………………………………………………………………………………… 59

Should there be exceptions or limits on when exclusion is unlawful? …………….. 61
Would a different approach to exclusionary discipline be more appropriate in the higher education and vocational education and training sectors? …………………………………. 62
How could the Disability Discrimination Act be amended to protect people with disability from offensive behaviour or harassment? ……………………………………………………. 63
If the Disability Discrimination Act were to prohibit offensive behaviour or harassment, how should these terms be defined? ……………………………………………………… 66
Should there be exemptions for any behaviour, similar to the Racial Discrimination Act? 68 28.1. Strengthening mechanisms for penalties, remedies and compensation ……….. 68 28.2. Exemptions and special clauses similar to the Racial Discrimination Act ………. 69
Given the recent legislative developments, are there any further gaps in the legislative framework that could be addressed by amendments to the Disability Discrimination Act to protect people with disability from vilification? …………………………… 69 29.1. Media and public communications ……………………………………………………….. 70 29.2. Online platforms and social media ……………………………………………………….. 71 29.3. Neighbourhood harassment or vilification ……………………………………………….. 73 29.4. Mandated data reporting: ensuring experiences of harassment and vilification on the grounds of disability are counted in Australian data ………………………………………. 74
How could the Disability Discrimination Act be amended to ensure that it covers policing? …………………………………………………………………………………………………. 76
Are there any specific circumstances or situations relating to policing or justice that should be excluded from the application of the Disability Discrimination Act? ……………….. 78
How can the Disability Discrimination Act be amended to clarify the protections for assistance animals for both people with disability and duty holders (questions 38, 39 and 40)? 78
Should there be minimum requirements for action plans (such as through guidelines) and what should the minimum requirements cover? ………………………………………………….. 82

33.1. Mandating Disability Action Plans more broadly ……………………………………….. 83 33.2. Minimum requirements for Disability Action Plans ……………………………………. 84 33.2.1. Consultation and co-design ……………………………………………………….. 84 33.2.2. Different requirements for different size/types of organisations/groups . 84 33.2.3. Actions which address discrimination experienced by people across the disability community ………………………………………………………………………………………… 85 33.2.4. Outcome areas for action ……………………………………………………….. 85 33.3. Data, monitoring and evaluation of Disability Action Plans …………………………. 86 33.3.1. Improving the effectiveness of Disability Action Plans and Disability Access and Inclusion Plans ……………………………………………………………………………………. 86 34. Should the Australian Human Rights Commission be able to reject action plans that fail to meet these requirements? ……………………………………………………………………… 88 35. Should there be a set period of time for which an action plan is valid? ……………….. 88 36. Are there any other changes to the action plan process that you would recommend? 89 37. How could compliance with and enforcement of the Disability Standards be improved? …………………………………………………………………………………………………………….. 89 38. Should the Disability Discrimination Act be amended to encourage relevant duty holders to self-report on their compliance with the Disability Standard(s) in disability action plans? 92 39. Could the Australian Human Rights Commission provide additional guidance to duty holders regarding how to self-report on the Disability Standards in disability action plans? 94 40. Permanent exemptions under the DDA ………………………………………………………….. 96 40.1. Special measures (section 45) ……………………………………………………….. 96 40.2. Superannuation and insurance (section 46) ……………………………………………… 97 40.3. Acts done under statutory authority (section 47) ……………………………………… 98 40.4. Infectious diseases (section 48) ……………………………………………………….. 99

40.5. Migration (section 52) ……………………………………………………………………… 101 40.6. Combat duties and peacekeeping (section 53) ………………………………………… 104 40.7. Assistance animals (section 54A) ……………………………………………………….. 105 41. Are there examples of legislative provisions in Commonwealth or state and territory anti-discrimination law that could be drawn on to modernise or strengthen the Disability Discrimination Act? ………………………………………………………………………………………………. 106 42. How can we ensure the Disability Discrimination Act remains fit-for-purpose into the future? ……………………………………………………………………………………………………………….. 108 42.1. A broader approach to discrimination reform is needed ………………………….. 108 42.2. Ongoing monitoring and governance mechanisms in relation to discrimination reform 110 42.3. Legislative changes required of the Disability Discrimination Act ………………. 111 42.4. Known areas where focus/consideration needed ……………………………………. 111 43. Are there any other issues with the Disability Discrimination Act that should be considered as part of this review? ……………………………………………………………………… 112 43.1. Health, mental health and the Disability Discrimination Act ……………………… 112 43.2. Improvements regarding the Disability Discrimination Act complaint processes 113 43.2.1. Continuing improvement of complaints processes ………………………………. 113 43.2.2. Addressing cost barriers to complaints …………………………………………. 115 43.2.3. Accessibility of information/communications about complaints processes 115 43.2.4. Data and information to inform continual improvement …………………… 116 43.2.5. Connecting the positive duty, and complaints processes …………….. 116 43.3. Justice, safety and the Disability Discrimination Act …………………………………. 117 43.4. Accommodation …………………………………………………………………………………. 119 43.5. Aviation reform ………………………………………………………………………………….. 120

Conclusion ………………………………………………………………………………………………… 122

1. Recommendations

We recommend:

Recommendation 1: The Federal Government should define disability broadly in line with the social model and the UN Convention on the Rights of Persons with Disabilities, capturing the full diversity of disability experiences and also including the disabling barriers people encounter.

Recommendation 2: The Federal Government should co-design the definition of disability in the Disability Discrimination Act alongside people with diverse disability experiences. The definition should be clear and consistent with human rights instruments and principles as well as other modernised Federal and State/Territory legislative instruments. The definition should encompass diverse experiences of disability, including intersectionality.

Recommendation 3: The Federal Government should amend the Disability Discrimination Act to expressly allow claims to be brought for multiple or combined protected attributes, in line with the Disability Royal Commission’s recommendation.

Recommendation 4: The Federal Government should amend the Objects or Principles of the Disability Discrimination Act to acknowledge that people with disability may face multiple and compounding forms of disadvantage as a result of intersectionality.

Recommendation 5: The Federal Government should amend the Disability Discrimination Act to strengthen data collection and monitoring processes with relation to intersectional complaints.

Recommendation 6: The Federal Government should amend the Disability Discrimination Act’s direct discrimination test to: A person (the discriminator) directly discriminates against a person with disability if, because of the person’s disability, the discriminator treats them unfavourably in circumstances that are the same or not materially different to those in which persons without that disability would be treated more favourably.

Recommendation 7: The Federal Government should amend the Disability Discrimination Act to shift the burden in individual claims onto the respondent to prove that the alleged discriminatory conduct was not engaged in because of the claimant’s disability.

Recommendation 8: The Federal Government should amend the Disability Discrimination Act to align the definition of indirect discrimination with section 9 of the Victorian Equal Opportunity Act 2010 (Vic) and to provide examples (e.g. in the schedules or notes) of what may constitute indirect discrimination.

Recommendation 9: The Federal Government should amend the Disability Discrimination Act to remove the reasonableness clause from the definition of indirect discrimination (sections 6(3) and (4) of the Act) and replace it with the unjustifiable hardship test.

Recommendation 10: The Federal Government should amend the Disability Discrimination Act to remove the language “does not or would not comply, or is not able or would not be able to comply” from the definition of indirect discrimination.

Recommendation 11: The Federal Government should amend the Disability Discrimination Act to include the Convention on the Rights of Persons with Disabilities into the objects provision to affirm the principle within our domestic law.

Recommendation 12: The Federal Government should amend the Disability Discrimination Act to expressly require the Act be interpreted in a way that is beneficial to people with disability, in line with human rights treaties.

Recommendation 13: The Federal Government should extend the scope of the new positive duty to all entities that currently owe a duty to people with disability under the existing Disability Discrimination Act.

Recommendation 14: The Federal Government should empower and fund the Australian Human Rights Commission, potentially in partnership with the Disability Discrimination Commissioner, to undertake a robust co-design process to develop detailed guidelines, industry-specific examples, and tools (like checklists or action plan templates) to assist duty holders.

Recommendation 15: The Federal Government should amend the Disability Discrimination Act to empower the Australian Human Rights Commission to monitor and enforce the positive duty.

Recommendation 16: The Federal Government should amend the Disability Discrimination Act to specify a reasonable commencement period for the Act’s positive duty to allow duty holders to self-assess and improve practices. The Federal Government should fund and deliver extensive outreach and education during the commencement period, especially to small businesses and community organisations.

Recommendation 17: The Federal Government should not include any exceptions or limits to the application of a positive duty in the Disability Discrimination Act.

Recommendation 18: The Federal Government should amend the Disability Discrimination Act to create a stand-alone duty to provide adjustments unless this would cause unjustifiable hardship.

Recommendation 19: The Federal Government should amend the Disability Discrimination Act to specify that the stand-alone adjustments duty will apply across all areas currently covered by the Disability Discrimination Act and also to volunteer work, unpaid work and other work-like contexts.

Recommendation 20: The Federal Government should amend the Disability Discrimination Act to replace all references to “reasonable adjustments” with “adjustments”.

Recommendation 21: The Federal Government should amend the Disability Discrimination Act to strengthen its unjustifiable hardship provisions, in line with the Disability Royal Commission’s recommendation. This would add new procedural requirements and clarify that the burden of proof lies with the respondent.

Recommendation 22: The Federal Government should amend the Disability Discrimination Act to require employers to consult with a person with disability and consider adjustments made or available before making employment decisions that affect them, with non-compliance admissible as evidence of discrimination.

Recommendation 23: The Federal Government should amend the Disability Discrimination Act to define “inherent requirements” as the essential tasks or functions of the role, and to include a non-exhaustive list of factors to consider when determining what is essential. The Act should also state that when determining whether a person is unable to carry out the inherent requirements of a particular role, a decision-maker must have regard to any adjustment that has been made or could be made.

Recommendation 24: The Federal Government should amend the Disability Discrimination Act to clarify that adjustments may include reallocating non-essential duties or modifying how tasks are performed, where the person can otherwise perform the essentials.

Recommendation 25: The Federal Government should amend the Disability Discrimination Act (or accompanying regulations or guidelines) to require employers to state the inherent requirements of a role in writing.

Recommendation 26: The Federal Government should amend the Disability Discrimination Act to define “exclusion” and “exclusionary discipline” in education and amend section 22(2)(b) to expressly cover suspension and exclusion (not only expulsion), including informal practices that remove a student from learning.

Recommendation 27: The Federal Government should amend the Disability Discrimination Act to limit exclusionary discipline to a last-resort safety measure to be used only where there is a serious risk of harm that cannot be mitigated after reasonable adjustments or behaviour supports have been implemented, and to require safeguards regarding duration, review, and provision of alternative learning materials.

Recommendation 28: The Federal Government should amend the Disability Discrimination Act to require higher education and Vocational Education and Training providers to have regard to the principles of inclusion and accommodation when taking disciplinary action or applying exclusion against a student with disability.

Recommendation 29: The Federal Government should amend the Disability Discrimination Act to clearly and explicitly define and prohibit harassment and vilification on the grounds of disability.

Recommendation 30: The Federal Government should add a clear definition of disability-based harassment to the Disability Discrimination Act, to recognise the unique ways in which people with disability experience harassment and ensure consistency in understanding.

Recommendation 31: The Federal Government should amend the Disability Discrimination Act to align with sections 18C and 18D of the Racial Discrimination Act 1975 (Cth) allowing people with disability to remedy or seek compensation for harm caused by harassment and vilification.

Recommendation 32: The Federal Government should amend the Disability Discrimination Act to include exemptions to harassment and vilification.

Recommendation 33: The Federal Government should amend the Disability Discrimination Act to include the clear provision that vilification (on the grounds of disability) in media and public communications (whether broadcast, print, or digital) is unlawful, even where it does not target a specific individual but still incites contempt or ridicule against people with disability as a group.

Recommendation 34: The Federal Government should include obligations for regulatory media bodies (such as the Australian Communications and Media Authority) and industry codes of practice to demonstrate compliance with anti-vilification and harassment standards, including transparent reporting and accessible complaints pathways.

Recommendation 35: The Federal Government should expand coverage of the Disability Discrimination Act to prohibit harassment and vilification in digital and online contexts. The Act should adopt a clear provision that serious, repeated, or systemic online conduct targeting a person or group of people with disability is unlawful, whether perpetrated by individuals or facilitated by platforms. Such amendments should require digital service providers and online platforms to take reasonable steps to remove disability-based harassment and vilification once reported, consistent with the Online Safety Act 2021 (Cth).

Recommendation 36: The Federal Government should amend the Disability Discrimination Act to adopt a clear provision making harassment on the grounds of disability unlawful in relation to a person’s residence or their local surrounds and neighbourhood. This should include making harassment unlawful in residential, strata, tenancy and communal spaces.

Recommendation 37: The Federal Government should amend the Disability Discrimination Act to ensure there is a mandated requirement for state, territory and federal governments to document and report publicly on disability-based harassment and vilification statistics routinely (e.g. bi-annual or annual).

Recommendation 38: The Federal Government should amend the Disability Discrimination Act to ensure that all interactions or communications with police personnel (both sworn police officers and unsworn police or associated staff) are included by the definition of services in section 4 of the Act.

Recommendation 39: The Federal Government should not amend the Disability Discrimination Act to exclude any circumstances or situations related to policing or justice from its application.

Recommendation 40: The Federal Government should develop national guidance, as part of the proposed Assistance Animals National Principles, describing the expected behaviours and training standards for assistance animals.

Recommendation 41: The Federal Government should develop guidance on how Public Access Tests should be made accessible to assistance animal users, including their frequency, cost and locations. This should be included as part of the guidance in the proposed Assistance Animals National Principles.

Recommendation 42: The Federal Government should introduce a mandatory disability inclusion training module for accredited animal trainers and Public Access Test assessors, to be included as part of the guidance in the proposed Assistance Animals National Principles.

Recommendation 43: The Federal Government should not amend the Disability Discrimination Act to include mandatory training requirements for assistance animals or

prescribe specific training organisations in the regulations. Instead, the expected training standards should be described in the proposed guidance as part of Assistance Animals National Principles.

Recommendation 44: The Federal Government should amend the Disability Discrimination Act to provide greater protections for assistance animals, including describing intentional harm to assistance animals as discrimination.

Recommendation 45: The Federal Government should amend the Disability Discrimination Act to mandate Federal Government departments, State/Territory governments, Local Governments/Councils, and public authorities to develop, deliver and implement Disability Action Plans as part of their efforts to prevent and address discrimination.

Recommendation 46: The Federal Government should seek out additional ways to incentivise organisations, businesses and groups to complete Disability Action Plans, such as through procurement advantages or access to other benefits.

Recommendation 47: The Federal Government should introduce minimum requirements for Disability Action Plans. These should:

Be proportionate to the size and impact of the department or organisation completing a Disability Action Plan.
Include requirements to consult (or, ideally, co-design) with people with disability and related stakeholders as Disability Action Plans are developed and reviewed.
Set out a list of topics/outcome areas (co-designed with the disability community) that DAPs are required to cover.
Require all departments and organisations developing a Disability Action Plan to work with an independent authority to ensure they deliver a quality plan.
Require all departments and organisations that have completed a Disability Action Plan to provide annual progress reports and undertake a review at the conclusion of each Disability Action Plan.

Recommendation 48: The Federal Government should fund an independent authority/s to support departments, organisations and groups to develop and implement effective Disability Action Plans, and to support ongoing quality improvement.

Recommendation 49: The Federal Government should commission research led by lived experience academics which provides guidance on what makes Disability Action Plans and Disability Access and Inclusion Plans most effective in different contexts.

Recommendation 50: The Federal Government should authorise the Australian Human Rights Commission to reject Disability Action Plans that fail to meet minimum requirements.

Recommendation 51: The Federal Government should amend the Disability Discrimination Act to prohibit Disability Action Plans from being less than two years or more than five years in duration, except in extenuating circumstances.

Recommendation 52: The Federal Government should amend the Disability Discrimination Act to require annual reporting on Disability Action Plans, and reviews at the end of a Disability Action Plan.

Recommendation 53: The Federal Government should strengthen the Disability Action Plan process by requiring all departments or organisations developing a Disability Action Plan to pass through a series of stages, reflecting how far they have come in understanding and promoting disability inclusion.

Recommendation 54: The Federal Government should establish an independent statutory oversight authority body empowered to oversee and enforce the Disability Standards on an ongoing basis. This body would monitor compliance across sectors, investigate systemic breaches, and avoid the conflicts of interest inherent in government agencies policing their own compliance.

Recommendation 55: The Federal Government should amend the Disability Discrimination Act to require the implementation of mandatory reporting by, and auditing of, duty holders regarding their level of compliance to their applicable Disability Standard.

Recommendation 56: The Federal Government should amend the Disability Discrimination Act to strengthen compliance deadlines and outcomes such as by requiring staged targets (e.g. 25 per cent, 50 per cent, 75 per cent compliance by certain dates) and regular checkpoints enforced by the oversight authority.

Recommendation 57: The Federal Government should amend the Disability Discrimination Act to require Disability Action Plans to align with relevant Disability Standards. This would require every Disability Action Plan to include:

An outline of the measures the organisation has in place to comply with each relevant Disability Standard;
An identification of any areas of partial or non-compliance; and
Specific strategies with timelines to achieve full compliance or higher accessibility targets.

Recommendation 58: The Australian Human Rights Commission should co-design written materials, workshops and training sessions which provide guidance to duty holders on how to comply with the Disability Standards.

Recommendation 59: The Australian Human Rights Commission should institute a system of reviewing a sample of action plans each year and providing confidential feedback to organisations on how they could improve their reporting.

Recommendation 60: The Federal Government amend the Disability Discrimination Act’s definition of special measures to align with the definition in section 7D(4) of the Sex Discrimination Act 1984 (Cth).

Recommendation 61: The Federal Government should amend the Disability Discrimination Act to grant power to the Australian Human Rights Commission to certify special measures upon application by an organisation.

Recommendation 62: The Federal Government should amend the Disability Discrimination Act to replace the phrase “special measures” with less stigmatising, more rights-based language, such as “positive measures” or “proactive measures”.

Recommendation 63: The Federal Government should amend the Disability Discrimination Act to require insurers to produce contemporary actuarial data or research substantiating any differential treatment of people with disability.

Recommendation 64: The Federal Government should amend the Disability Discrimination Act to grant the power to the Australian Human Rights Commission or another regulator to periodically review whether industry practices under this exemption remain reasonable and evidence-based.

Recommendation 65: The Federal Government should amend the Disability Discrimination Act to insert into section 47 a sunset clause requiring a review of the provision within five years.

Recommendation 66: The Federal Government should amend the Disability Discrimination Act to require that any measures taken under section 48 are necessary and proportionate to protect the community, are the least restrictive measures possible, and are based on current best practice medical evidence.

Recommendation 67: The Federal Government should remove the migration exemption (section 52) from the Disability Discrimination Act.

Recommendation 68: The Federal Government should extend the Disability Discrimination Act to specifically include Australian immigration services to ensure the process is fair and inclusive.

Recommendation 69: The Federal Government should remove the exemption in section 53 of the Disability Discrimination Act with respect to people in combat, combat-related or peacekeeping roles, as well as the support roles that serve those operations.

Recommendation 70: The Federal Government should update section 54A of the Disability Discrimination Act to align it with the Assistance Animals National Principles once they come into effect. This would include reference to the nationally consistent identity card or logo as evidence that an animal is an assistance animal, and the introduction of a nationally accepted Public Access Test for assistance animals as evidence that the animal has been trained to the minimum training standards.

Recommendation 71: The Federal Government should provide guidance on section 54A of the Disability Discrimination Act, specifically on how duty holders should handle encounters with assistance animals that display symptoms of infectious disease.

Recommendation 72: The Federal Government should review provisions that provide for a positive duty to eliminate discrimination in laws such as the Sex Discrimination Act 1984 (Cth), the Discrimination Act 1991 (ACT) and the Anti-Discrimination Act 1992 (NT). These provide good examples that could be mirrored in the Disability Discrimination Act.

Recommendation 73: The Federal Government should monitor implementation of the Disability Inclusion Act 2018 (SA) to consider how the specific needs of people with disability with intersecting identities could be met more effectively through the Disability Discrimination Act.

Recommendation 74: The Federal Government should ensure that reform of the Disability Discrimination Act forms part of a broader, coordinated approach towards achieving the objects of the Act. This approach should connect with and build on existing strategies or plans, with the specific goal of eliminating discrimination against people with disability. Such an approach should be co-designed with people with disability, disability advocacy/representative organisations including those representing people facing intersectional barriers, and other stakeholders.

Recommendation 75: The Federal Government should strengthen and expand incentives and enforcement mechanisms to encourage duty holders to act on their responsibilities to prevent and respond to discrimination against people with disability.

Recommendation 76: The Federal Government should commit to funding ongoing research, for example via the National Disability Research Partnership, into ways to increase the effectiveness of efforts to prevent and eliminate discrimination.

Recommendation 77: The Federal Government should create ongoing governance mechanisms to oversee broader disability discrimination reform, involving people with disability, disability advocacy/representative organisations (including those representing people facing intersectional barriers) and other stakeholders.

Recommendation 78: The Federal Government should ensure that ongoing governance mechanisms receive and can act on new and emerging research and knowledge as to what will improve the effectiveness of discrimination reform efforts, and that they have the authority to recommend or implement change as required.

Recommendation 79: The Federal Government should embed a requirement for five-yearly reviews of the Disability Discrimination Act, to ensure it evolves in line with emerging knowledge, research and community needs.

Recommendation 80: The Federal Government should commit to funding ongoing research, co-designed with people with disability (e.g. via the National Disability Research Partnership), on new and emerging issues where action might be needed to prevent, eliminate and reduce the impacts of discrimination against people with disability.

Recommendation 81: The Federal Government should amend the Disability Discrimination Act to introduce healthcare and hospitals (including health services and hospitals delivering mental health care) as areas in which there is explicit protection against negative discrimination in the Act.

Recommendation 82: The Federal Government should strengthen both individual and representative complaints mechanisms and avenues to ensure equitable access to complaints processes and to improve the quality and fairness of complaint outcomes.

Recommendation 83: The Federal Government should ensure that the Australian Human Rights Commission and related service systems (including community discrimination law support, via both advocacy and legal services) are funded at adequate levels to match demand, so that discrimination complaints can be resolved in a timely manner.

Recommendation 84: The Federal Government should work with people with disability and advocacy/representative bodies to continue to better understand and address financial barriers to pursuing discrimination complaints.

Recommendation 85: The Federal Government should resource the Australian Human Rights Commission to work in partnership with a diverse group of people with disability, and advocacy/representative bodies and other stakeholders, to ensure that information and communications about complaints and complaints processes are accessible to the entire community. As part of this exercise, there should be particular attention paid to addressing information and communication barriers experienced by people facing complex communication barriers, as well as intersectional barriers.

Recommendation 86: The Federal Government should require the Australian Human Rights Commission to regularly publish additional de-identified information about complaints received and outcomes achieved. This should include complaints that are settled and those that cease/are terminated/withdrawn, as well as any patterns noticed or trends.

Recommendation 87: If a positive duty is adopted as part of the Disability Discrimination Act, the Federal Government should require discrimination complaints processes to be updated so that this positive duty is taken into consideration.

Recommendation 88: The Federal Government should amend the Disability Discrimination Act to introduce justice and safety services and systems as contexts in which there is explicit protection against negative discrimination.

Recommendation 89: The Federal Government should include a clause in the Disability Discrimination Act to prevent discrimination against people with disability in making decisions that affect their lives and providing for adjustments to support such decision-making if required.

Recommendation 90: The Federal Government should amend the Disability Discrimination Act to strengthen protections in the home environment, specifically to protect against disability-related harassment or abuse and the creation of a hostile environment by neighbours or others.

Recommendation 91: The Federal Government should co-design a comprehensive aviation Disability Standard aligned with the Disability Discrimination Act. The Federal Government should implement this as a matter of priority and adequately fund independent oversight and regulation.

2. Introduction

JFA Purple Orange welcomes the opportunity to contribute to the Disability Discrimination Act (DDA) Review. As an independent systemic disability advocacy organisation, we ground our responses in a human rights approach, the social model of disability and our own Model

of Citizenhood Support, with a commitment to ending segregation in all areas of life^[1]. We endorse the recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the “Disability Royal Commission” (DRC)) that promote genuine inclusion and equality for Australians with disability^[2]. We emphasise co-designed solutions which uphold the rights, dignity, and full citizenhood of people with disability.

3. How should disability be defined in the Disability Discrimination Act?

The definition of “disability” in the DDA should be updated to reflect contemporary understandings and the social model of disability, aligning with the United Nations Convention on the Rights of Persons with Disabilities (CRPD)^[3]. This means defining disability broadly to include all forms of physical, sensory, intellectual, neurological, psychosocial, and cognitive disability, whether permanent or episodic, while emphasising that disability arises from the interaction with various barriers in society. This framing focuses on the disabling impact of societal and environmental barriers, rather than a narrow medical diagnosis, and is consistent with human rights-based language^[4]. Incorporating this concept would underscore that the law’s purpose is dismantling barriers and supporting full participation.

We support adopting a definition similar to the one used in some recent reforms at the state/territory level and the CRPD. For example, the ACT’s Disability Inclusion Act 2024 and Australia’s Disability Strategy 2021-2031 define disability in broad, inclusive terms that account for various forms of disability and acknowledge the role of societal barriers^[5]. A modern DDA definition could state that disability includes any physical, mental, intellectual,

^[1] JFA Purple Orange, 2023, Our Approach: The Model of Citizenhood Support, https://www.jfapurpleorange.org.au/our-approach. ^[2] Australian Government, 29 September 2023, Final Report: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, https://disability.royalcommission.gov.au/publications/final-report ^[3] United Nations Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). See https://social.desa.un.org/issues/disability/crpd/convention-on-the-rights-of-persons-with-disabilities-crpd ^[4] Paul Harpur, 2012, ‘Embracing the New Disability Rights Paradigm: The Importance of the Convention on the Rights of Persons with Disabilities’, Disability & Society, 27(1), 1-14, https://doi.org/10.1080/09687599.2012.631794 ^[5] Disability Inclusion Act 2024 (ACT) section 9.

cognitive, neurological or sensory difference, illness or condition, or a combination of these, which in interaction with various barriers (environmental or attitudinal) may hinder a person’s full and effective participation in society on an equal basis with others.

The definition’s scope should continue to apply to those with past or potential future disability and those who are presumed to have a disability. It should also cover people who use aids, equipment, or assistance animals as an aspect of their disability, consistent with current DDA provisions which treat use of an assistance animal as part of the definition of disability^[6]. Any tightening or modernising of language must not result in loss of coverage for groups currently covered by the legislation. Instead, it must clarify and expand coverage consistent with community expectations in 2025 and beyond.

4. What factors should be considered in developing a new definition of disability?

4.1. Consistency with human rights instruments and principles

The definition should be guided by the CRPD and reflect its principles of dignity, autonomy, and full societal participation. Australia’s obligations under the CRPD require that domestic law not restrict the concept of disability too narrowly. Instead, it must facilitate equality and non-discrimination for all people with disability^[7]. The definition should also incorporate the social model, meaning it recognises disability as arising from the interaction with barriers. This aligns with contemporary human rights thinking and ensures the law focuses on removing those barriers.

^[6] Disability Discrimination Act 1992 (Cth) section 9(1)(f). ^[7] Theresia Degener, (2017), A New Human Rights Model of Disability. In Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (Eds.), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (pp. 41-59). Springer.

4.2. Co-design and lived experience input

The process of redefining disability should be undertaken alongside Australians with diverse disabilities and from intersectional identities through co-design. JFA Purple Orange strongly supports genuine co-design in all disability policy. People with lived experience can identify language that is empowering (or problematic) and ensure the definition captures conditions that are sometimes overlooked. For instance, psychosocial disabilities or episodic conditions must be explicitly considered so they are not inadvertently excluded. Co-design helps ensure the definition resonates with the community it serves and avoids unintended gaps^[8].

4.3. Inclusivity and diversity of disability experiences

The definition must cover a wide range of disabilities and health conditions. This includes traditionally recognised disabilities as well as less visible or less understood ones such as autism, learning disabilities, intellectual disability, chronic illnesses, and neurodivergence. It should also consider intersectionality. For example, disability may intersect with age, gender, cultural background, affecting how disability is experienced. While intersectionality itself is addressed later in the Act, the definition should be broad enough so that no group is shut out. Ensuring the law is inclusive of neurodiversity is one example. Research highlights that acknowledging neurological differences as part of human diversity is critical to reducing stigma^[9]. The law should avoid pathologising language and instead use neutral or positive wording such as speaking of “physical, intellectual, cognitive, neurological or sensory differences”.

4.4. Clarity and effectiveness

^[8] Australian Law Reform Commission, 2013, Access All Ages—Older Workers and Commonwealth Laws, pp. 3.29-3.32, ALRC Report. ^[9] Judy Singer, 2017, Why Neurodiversity?. In Judy Singer (Ed.), Neurodiversity: The Birth of an Idea.

While being broad, the definition should be clear enough to be applied consistently. Simplicity in language can aid understanding by employers, service providers and the public. Consideration can be given to including illustrative examples or a non-exhaustive list of what “impairments (or preferably differences)” include. The law might state, for example, “Disability includes physical, mental, intellectual, neurological or sensory impairments, learning differences, psychological or psychiatric conditions, and the presence in the body of organisms causing or capable of causing disease, as well as guide dog support needs, support animals, equipment or assistance”. This would modernise and clarify the scope in plain terms. However, the government must not apply in and out lists, to ensure that any person with a condition that results in disadvantage due to societal barriers will come under the protection of the Act.

4.5. Alignment with other jurisdictions

Consistency with definitions in state/territory laws (where those have been modernised) is desirable for coherence. Recent reviews, such as in Queensland and Western Australia, recommended broadening definitions of disability in their anti-discrimination laws to align with contemporary standards^[10]. For example, Queensland’s 2022 review supported updating terminology to “person with disability” and ensuring all forms of disability are encompassed^[11]. Aligning with these trends can reduce confusion and create a uniform understanding nationally.

Developing a new definition should involve balancing breadth and clarity, guided by human rights and co-designed with the disability community. It should reflect that disability is a dynamic, socially influenced experience, not a static medical label^[12]. By considering the above factors, the definition will support the DDA’s objects of eliminating discrimination and promoting community inclusion.

^[10] Queensland Human Rights Commission, 2022, Review of Queensland’s Anti-Discrimination Act 1991: Final Report, pp. 72-74. ^[11] Queensland Human Rights Commission, 2022, Review of Queensland’s Anti-Discrimination Act 1991: Final Report, pp. 72-74. ^[12] Rosemary Kayess & Phillip French, 2008, Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities, Human Rights Law Review, 8(1), 1-34. See page 17. https://doi.org/10.1093/hrlr/ngm044

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

Expressly allowing complaints on multiple or combined grounds of discrimination would significantly strengthen the DDA by reflecting the reality of intersectional discrimination and providing more effective remedies^[13]. Currently, while a person can lodge complaints under multiple anti-discrimination laws simultaneously, the DDA itself, as previously mentioned, does not explicitly acknowledge intersectionality. As a result, people who experience discrimination due to a combination of disability and other attributes (such as race, gender, age) often face procedural complexity and may not have the full reality of their experience addressed^[14].

We support an intersectional approach. Many people with disability also belong to other marginalised groups. For example, a person with disability who identifies as culturally and linguistically diverse (CALD), may encounter unique prejudice^[15]. Under the current DDA, such a person might have to disaggregate their experience into separate claims (one for disability discrimination, one for racial discrimination), which fails to grasp the combined impact. Research confirms that intersectional disadvantage is not merely the sum of two (or

^[13] Australian Government, 29 September 2023, Final Report: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Vol. 7, 185. https://disability.royalcommission.gov.au/publications/final-report ^[14] Australian Human Rights Commission, 2023, Free and Equal: A Human Rights Act for Australia, 105-106. https://humanrights.gov.au/free-and-equal ^[15] Kimberlé Crenshaw, 1989, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, University of Chicago Legal Forum, 139.

more) biases, but a distinct experience of compounding impacts requiring recognition^[16]. By explicitly permitting combined-attribute claims, the DDA would enable such a person to bring one coherent complaint capturing the true nature of the discrimination. This would likely improve access to justice and outcomes as it avoids the person needing to prove which part of the mistreatment was “because of disability” versus “because of race” when in fact it might relate to both inseparably^[17].

This change would also implement a key DRC recommendation. The DRC identified that people often experience

compounding“ discrimination and recommended that laws allow intersectional claims^[18]. It noted that the current siloed approach can be a barrier. Blackham and Temple (2020), for instance, empirically critiqued Australia’s legal framework for failing to accommodate intersectional discrimination and offered concrete suggestions for reform^[19]. They and others have argued that allowing combined claims would better reflect lived realities and improve data on how discrimination operates^[20].

Explicitly allowing combined attributes could be done by an amendment stating that a complaint may allege unlawful discrimination “on the basis of disability and one or more other protected attributes together”, and that such a combined ground is to be treated as a single ground for the purpose of establishing discrimination. This would remove any doubt that the Australian Human Rights Commission (AHRC) or courts can consider the intersection. The DDA already has a helpful provision (section 10) that if an act is done for multiple reasons and one reason is disability, it is treated as done because of disability^[21].

^[16] Beth Gaze, 2009, The Sex Discrimination Act at 25: Reflections on the Past, Present and Future, Alternative Law Journal, 34(3), p 145. See page 148. https://doi.org/10.22459/SDUT.09.2010.05 ^[17] Australian Government, 29 September 2023, Final Report: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Vol. 7, 185. https://disability.royalcommission.gov.au/publications/final-report ^[18] Australian Government, 29 September 2023, Final Report: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Vol. 7, 185. https://disability.royalcommission.gov.au/publications/final-report ^[19] Alysia Blackham & Colleen Temple, 2020, Intersectional Discrimination in Australia: An Empirical Critique of the Legal Framework, UNSW Law Journal, 43(3), 773. https://www.unsw.edu.au/content/dam/pdfs/law/unsw-law-journal/2020-2029/2020/Issue-43-3-02-BLACKHAM-AND-TEMPLE.pdf ^[20] Alysia Blackham & Colleen Temple, 2020, Intersectional Discrimination in Australia: An Empirical Critique of the Legal Framework, UNSW Law Journal, 43(3), 773. See pp. 795-798. https://www.unsw.edu.au/content/dam/pdfs/law/unsw-law-journal/2020-2029/2020/Issue-43-3-02-BLACKHAM-AND-TEMPLE.pdf ^[21] Disability Discrimination Act 1992 (Cth) section 10.

Amending the Act’s objects clause to acknowledge that people with disability may face multiple and compounding forms of disadvantage would set an important interpretive tone. For example, an object could be “to eliminate discrimination on the basis of disability, including where disability intersects with other attributes such as sex, race, age…” This signals to courts and duty-holders that the law should be applied in a way that is sensitive to overlapping inequalities. It aligns with the approach of some new state legislation. For instance, Tasmania’s Disability Rights, Inclusion and Safeguarding Act 2024 explicitly defines and highlights intersectionality in its principles.25 Including a similar acknowledgement in the DDA would be a symbolic and practical step forward.

6.2. Data collection and monitoring

One practical way to address compounding discrimination is by improving how complaints are recorded and analysed. The AHRC could be empowered or directed to collect data on intersectional complaints. For instance, allowing complainants to tick multiple attribute boxes on the complaint form (which AHRC already does informally).26 More systematically, requiring periodic reporting on how many disability complaints also involve other attributes would highlight problem areas such as whether women with disability are lodging many complaints about employment discrimination, suggesting a need for targeted guidance. Better data can lead to evidence-based policy adjustments.

Recommendation 5: The Federal Government should amend the Disability Discrimination Act to strengthen data collection and monitoring processes with relation to intersectional complaints.

25 Disability Rights, Inclusion and Safeguarding Act 2024 (Tas) section 7. 26 Australian Human Rights Commission, Complaint Information Service https://humanrights.gov.au/complaints/make-complaint https://humanrights.gov.au/complaints/make-complaint/complaint-information-service

7. What test should be used to ensure that the definition of direct discrimination is easy to understand and implement for both duty holders and people with disability, and why?

The test for direct discrimination in the DDA should be simplified by removing the cumbersome comparative element and focusing only on whether a person with disability was treated unfavourably because of their disability. The current two-step test, requiring a comparison with how a person without disability would have been treated in similar circumstances (the “comparator test”) and proving causation (“because of disability”),27 has rightly been criticised as overly technical and confusing28. We support moving to a single-limb “unfavourable treatment” test, which asks: Did the person with disability experience detriment or less favourable treatment, on the basis of disability? This test is easier for all parties to understand and aligns with approaches already used in some jurisdictions.29

7.1. Clarity for complainants

Under the comparator test, a complainant must hypothesise a suitable comparator without disability and show they were treated worse.30 This has proven difficult and often counter-intuitive, especially in cases where no obvious comparator exists. For instance, how can one compare the treatment of a student with disability who was denied adjustments to a student without a disability? It has led to outcomes like the Purvis v New South Wales case, where the High Court’s use of a strict comparator analysis made it very hard for the student with disability to succeed.31 A simplified test, “Did this person suffer detriment because of disability”, avoids such outcomes. It centres on the lived experience of the person with disability, which is more accessible for them to articulate and for respondents to respond to, without legal fictions.

7.2. Easier for duty holders

27 Disability Discrimination Act 1992 (Cth) section 5. 28 Neil Rees, Simon Rice & Dominique Allen, 2018, Australian Anti-Discrimination and Equal Opportunity Law, (pp. 156-160). Federation Press. 29 Equal Opportunity Act 2010 (Vic) section 8. 30 Disability Discrimination Act 1992 (Cth) section 5. 31 Purvis v New South Wales (2003) 217 CLR 92.

Duty holders, such as employers and service providers, often report struggling with the legal complexities of the comparator test. By codifying an unfavourable treatment test, the law’s requirement becomes more intuitive. Employers would not need to engage in complex comparisons; rather, they could focus on ensuring they are not disadvantaging an employee or customer because of their disability. For instance, if an employer fails to hire someone because of assumptions about their disability, that is unfavourable treatment because of disability. The employer doesn’t need to imagine a comparator; they can readily grasp this is unlawful. This clarity can improve voluntary compliance, as duty holders better understand what behaviour to avoid.

7.3. Alignment with DRC recommendations and other laws

The DRC recommended removing the comparator requirement and focusing on unfavourable treatment (detriment).32 Adopting an unfavourable treatment test implements the DRC’s vision.33 The Victorian Equal Opportunity Act already uses a formulation where direct discrimination is defined without a comparator, instead looking at whether someone was treated “unfavourably” because of an attribute.34 The UK Equality Act 2010 similarly assesses direct discrimination by asking whether there is a detriment because of a protected characteristic, instead of requiring an explicit comparison.35 The 2022 review of Queensland’s Anti-Discrimination Act also favoured simplifying the test.36 By aligning the DDA with these approaches, Australia would create consistency and benefit from established persuasive jurisprudence from jurisdictions with simplified tests.

32 Australian Government, 29 September 2023, Final Report: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Vol. 7, 174-175. https://disability.royalcommission.gov.au/publications/final-report 33 Australian Government, 29 September 2023, Final Report: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Vol. 7, 174-175. https://disability.royalcommission.gov.au/publications/final-report 34 Equal Opportunity Act 2010 (Vic) section 8. 35 Equality Act 2010 (UK) section 13. 36 Queensland Human Rights Commission, 2022, Review of Queensland’s Anti-Discrimination Act 1991: Final Report, p. 95.

treats them unfavourably in circumstances that are the same or not materially different to those in which persons without that disability would be treated more favourably.

8. How should the burden of proof be addressed in the Disability Discrimination Act?

We support reforming the burden of proof in DDA claims to reduce the onerous burden on complainants and to require respondents to justify their conduct once a prima facie case of discrimination is established. We endorse a shift of the burden of proof similar to the shift which has occurred in other areas of Australian and international discrimination law: once the person with disability proves facts from which the court concludes there was discriminatory treatment, the burden shifts to the respondent to prove that the treatment was not because of disability.37

The DRC found the requirement to prove the discriminator’s motive or reason to be a significant hurdle and recommended shifting the burden to the respondent for the causation element.38 We agree with that recommendation.

One model is the approach used in the Fair Work Act 2009 (Cth) for adverse action claims: an employer must prove that a protected attribute (like disability) was not a reason for their action, once a claim is made.39 The UK’s Equality Act’s section 136 also has a burden-shifting mechanism once a prima facie case is shown.40 The DDA could incorporate a provision stating, for example, if the facts established by the complainant would, in the absence of an explanation, make it reasonable to infer that the respondent’s engaged in conduct for a discriminatory reason, the conduct is presumed to be engaged in for that reason unless the respondent proves otherwise. This wording, which is drawn from UK jurisprudence and is

37 Fair Work Act 2009 (Cth) section 361. 38 Australian Government, 29 September 2023, Final Report: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Vol. 7, 176. https://disability.royalcommission.gov.au/publications/final-report 39 Fair Work Act 2009 (Cth) section 361. 40 Equality Act 2010 (UK) section 136.

consistent with Queensland’s Fair Work-style approach41 would shift the onus onto the respondent to disprove discrimination once the complainant shows a prima facie case. This shifting of the burden would make DDA claims fairer and more practical for claimants.

8.1. Fairness and practicality

The respondent is typically in a better position to know and explain their decision-making process than the claimant. For instance, if a job applicant with disability is not hired, the employer knows why they chose another candidate. If the applicant can show they met the requirements and were passed over in suspicious circumstances, it is fair to ask the employer to prove that disability was not a factor. Otherwise, the applicant faces the near impossible task of proving someone else’s internal state of mind. This can result in meritorious cases failing simply due to evidentiary hurdles. Shifting the burden corrects that imbalance, ensuring decisions get a thorough explanation rather than being dismissed for lack of proof of motive.42

8.2. International best practice

Many jurisdictions, such as the European Union,43 incorporate burden shifting in discrimination cases. The approach has not led to an undue flood of liability; it simply means that if a complainant establishes facts suggestive of discrimination, the onus is on the respondent to show legitimate reasons. Australia’s own Fair Work Act recognises this principle for adverse action claims. The experience there has shown it is workable and leads to employers providing evidence of their reasons such as performance issues or other non-discriminatory factors, which a court can then weigh.

8.3. It complements positive duty

If a positive duty to eliminate discrimination, which will be discussed in response to Questions 12 to 15, is introduced, enforcement of that duty will likely be regulatory rather

41 Queensland Human Rights Commission, 2022, Review of Queensland’s Anti-Discrimination Act 1991: Final Report, p. 87. 42 Australian Government, 29 September 2023, Final Report: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Vol. 7, 176. https://disability.royalcommission.gov.au/publications/final-report 43 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16, article 10.

than through individual litigation. However, for individual claims of discrimination, a shifted burden of proof complements the positive duty by reinforcing that the law expects duty holders to be able to demonstrate non-discriminatory rationales. It nudges employers and service providers to keep records and evidence of their decision processes, such as documenting why a person was not selected, which is a good practice anyway. The DRC recommended that for adjustments and unjustifiable hardship assessments, duty holders should document their considerations.44

8.4. Easier to understand

While the concept of burden shifting is a legal technicality, it can be explained in plain terms: if it looks like discrimination might have happened, the person or organisation who took the action has to show that it wasn’t discrimination. This is intuitively fair to most people. Duty holders can be educated that if they have a good, disability-neutral reason, they will not be found liable, but they need to be prepared to show that reason with evidence. This encourages better practices (like documenting performance issues or genuine occupational requirements) and discourages sloppy or biased decision-making.

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

The definition of indirect discrimination in the DDA should be simplified and streamlined by removing unnecessarily technical elements and clearly focusing on the core concept: whether a requirement, condition or practice disproportionately disadvantages people with

44 Australian Government, 29 September 2023, Final Report: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Vol. 7, 151. https://disability.royalcommission.gov.au/publications/final-report

disability, without imposing unjustifiable hardship. To make the multi-limb test under section 6 of the DDA easier to understand and implement, we propose eliminating the need to prove actual inability to comply.

9.1. Use plain language examples

To aid understanding, accompanying guidance to the Act should include examples, with all examples communicated accessibly, such as in Easy Read. For instance: “A requirement to climb a flight of stairs to access a public service indirectly discriminates against people who use wheelchairs, unless the service provider can show it would be unjustifiable hardship because no alternative is feasible”. Such examples can illustrate common scenarios of indirect discrimination in employment, education, making the concept inclusive and accessible.

9.2. Align with updated state laws

Some state jurisdictions have updated their indirect discrimination provisions to be clearer. The Victorian Act asks whether the respondent “imposes a requirement… that disadvantages persons with an attribute” and if so, whether it is reasonable. The analysis of reasonableness is guided by factors listed in the legislation.45 The DDA could adopt a similar but even more straightforward definition. Given duty holders often operate across jurisdictions, a harmonised test would help. Simplifying the DDA definition in line with best practice will reduce confusion for national employers and advocacy groups who currently juggle slightly different tests in different jurisdictions.

45 Equal Opportunity Act 2010 (Vic) section 9.

10. Should the reasonableness element in the definition of indirect discrimination be: (a) removed, (b) retained and supplemented with a list of factors to consider, (c) replaced by a legitimate and proportionate test, or (d) other?

The current reasonableness element in section 6(4) has been found to be confusing and duplicative.46 If a requirement significantly disadvantages people with disability, tribunals have to assess if that requirement is “reasonable in the circumstances”. When doing so, they often weigh factors like the benefit of the requirement, its purpose, and the burden of alternatives. These are overlapping or duplicative considerations;47 as the Issues Paper notes, the DRC found the existing regime creates “several layers of exceptions or defences” that complicate matters.48 Removing the separate reasonableness limb would mean the indirect discrimination test would focus on disadvantage and then allow the respondent to justify the requirement only via the unjustifiable hardship exception.

The term “reasonable” is inherently subjective and has led to inconsistent interpretations. Providing a concrete list of factors (option (b)) could help consistency, but still leaves the weighing open to interpretation. Many submissions to law reform bodies have noted that listing factors would mirror what courts look at anyway,49 such as the nature and extent of disadvantage, feasibility of alternatives and the financial cost. If the reasonableness remains, we would certainly want those factors enumerated to guide courts and duty holders, as is done in Victoria. However, we feel this is still a second layer that could be collapsed into the hardship test.

46 Neil Rees, Simon Rice & Dominique Allen, 2018, Australian Anti-Discrimination and Equal Opportunity Law, (p. 183). Federation Press. 47 Australian Government, 29 September 2023, Final Report: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Vol. 7, 178. https://disability.royalcommission.gov.au/publications/final-report 48 Australian Government, 29 September 2023, Final Report: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Vol. 7, 178. https://disability.royalcommission.gov.au/publications/final-report 49 Queensland Human Rights Commission, 2022, Review of Queensland’s Anti-Discrimination Act 1991: Final Report, p. 90-91.

We prefer to remove the ambiguous term “reasonableness” to avoid confusion. The DDA already has an unjustifiable hardship concept in various contexts, such as employment adjustments and education. Removing one layer will not leave duty holders unfairly exposed, as unjustifiable hardship is a fairly protective standard for respondents, only requiring adjustments that are not unduly onerous.

11. Should the language of ‘does not or would not comply, or is not able or would not be able to comply’ be removed from the definition of indirect discrimination?

The current definition requires showing the person with disability “does not or would not comply” with the requirement because of their disability.50 If a requirement disadvantages people with disability, it is typically because many cannot meet it or are adversely affected by it. Having to separately prove that this particular complainant cannot comply can be redundant and confusing. It can also fail in situations where the person did technically comply but at significant cost to themselves. For example, a student with disability manages to meet a uniform requirement but suffers distress in doing so. We suggest removing the explicit language about the individual’s inability to comply.51 Instead, the focus should be on the group disadvantage: if a condition is one that people with the complainant’s disability are less likely to meet, that should be sufficient. The AHRC and others have similarly noted that the “does not comply” element adds little. A requirement disadvantaging people with disability inherently means many cannot comply.52

50 Neil Rees, Simon Rice & Dominique Allen, 2018, Australian Anti-Discrimination and Equal Opportunity Law, (p. 180-185). Federation Press. 51 Disability Discrimination Act 1992 (Cth) section 6(1). 52 Australian Human Rights Commission, 2003, Submission to the Productivity Commission Inquiry into the Disability Discrimination Act 1992, 23.

A clearer definition would be: indirect discrimination occurs when a person imposes a requirement, condition or practice that appears neutral but in fact disadvantages people with disability, and cannot be justified in the circumstances. Said another way, does a rule or way of doing things put people with disability at a disadvantage? And if so, is there a justified reason for it, or could adjustments be made? This definition, while clearer than the current one, would still benefit from being accompanied by some plain language examples.

12. Should the Disabilities Convention be included in the objects provision of the Disability Discrimination Act?

The CRPD, referred to in the Issues Paper as the “Disabilities Convention”, should be included in the objects clause of the DDA. Doing so would reinforce the Act’s role in giving effect to Australia’s international obligations and guide interpretation towards a human-rights model.53

Including the CRPD aligns with our consistent call for all disability laws and policies to be grounded in contemporary human rights standards.54 An objects clause inclusion is a simple but meaningful way to achieve this. It sends a powerful message that the DDA is part of a larger human rights framework. When Australia ratified the CRPD in 2008, leaders declared unequivocally that people with disability should be treated as equals.55 Placing the CRPD in the Act’s objects affirms that principle in our domestic law.

Courts often look to the objects clause when interpreting ambiguous provisions.56 If the CRPD is listed, courts are more likely to interpret the DDA in a manner that is beneficial to

53 Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford University Press, 4th ed, 2020) 678-680. 54 JFA Purple Orange, ‘Submission to the Department of Social Services on the Federal Government Response to the Disability Royal Commission’ (Submission, August 2024) 5. 55 The Hon Bill Shorten MP, ‘Second Reading Speech: Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008’ (House of Representatives, 27 August 2008). 56 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

people with disability and consistent with CRPD principles. The DRC recommended that the Act include provisions to guide courts to interpret it in line with CRPD obligations.57 Adding it to objects clause is one step in that direction.

13. Should the Disability Discrimination Act be expressly required to be interpreted in a way that is beneficial to people with disability, in line with human rights treaties?

The DDA should include an explicit interpretive provision, often called a “beneficial interpretation” clause or a human rights consistent interpretation clause that mandates, to the extent possible, the Act to be interpreted in favour of enhancing the rights of people with disability and consistently with international human rights treaties, especially the CRPD. This was a clear recommendation of the DRC,58 and would ensure the Act’s application remains anchored to its fundamental purpose: advancing equality for people with disability. Anti-discrimination laws are typically remedial and beneficial in nature; they are meant to address historical and structural disadvantages. Without an express interpretive directive, though, courts sometimes lean towards narrow readings. For instance, in some cases like Purvis, a majority of the High Court took a strict interpretation of direct discrimination that significantly limited protections.59

Jurisdictions with a human rights charter, like Victoria’s Charter of Human Rights, have provisions requiring statutes to be interpreted compatibly with human rights to the extent possible.60 While the Commonwealth doesn’t have a general charter, inserting a treaty-

57 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ). 58 Commonwealth, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023) vol 7, 189. 59 Purvis v New South Wales (2003) 217 CLR 92. 60 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(1).

consistent interpretation rule in the DDA would similarly infuse human rights principles directly into judicial statutory interpretation for this Act. This would operationalise Australia’s CRPD obligations domestically, beyond just the objects clause. The DRC report highlighted that other Commonwealth discrimination acts do not yet have these beneficial interpretation clauses and recommended adding one for the DDA.61 Administrators, conciliators at AHRC, and policymakers interpreting the DDA (such as developing standards or action plan guidelines) would also be guided by such a section.

14. If there was a positive duty in the Disability Discrimination Act, who should it apply to?

Discrimination and systemic barriers are pervasive across society, not just within large corporations or government. Limiting the positive duty in the Act would undermine its systemic change potential. A broad duty fosters a culture shift: all organisations would become aware they have a role in proactively including people with disability, rather than thinking “only big players or government have to do that”. Broad coverage also avoids creating perverse incentives such as a businesses avoiding growing beyond a threshold to avoid the duty, or outsourcing functions to duty-free entities. It also simplifies messaging: “Every employer and service provider has a positive duty to eliminate disability discrimination”.

The positive duty should apply to any government department, organisation, business or person with management responsibilities, given that all of the above are subject to the DDA. The duty should apply to the private and public sectors, regardless of size. This includes government agencies, big corporations, small and medium enterprises, and not-for-profits with employees. Discrimination and lack of inclusion can occur in workplaces of any size;

61 Commonwealth, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023) vol 7, 189.

excluding small businesses would leave a significant gap. The content of the duty, taking “reasonable and proportionate” measures, naturally scales to an employer’s size and resources.62 This proportionality ensures a blanket application is fair, as larger employers will be expected to do more, while smaller ones would be required to do what is within their capacity. In the new Sex Discrimination Act’s positive duty, no employer size threshold was set; the duty applies to all “persons conducting a business or undertaking”.63 The same approach should be mirrored here.

14.1. Services providers and businesses

Any person or organisation providing goods, services, or facilities to the public should be subject to the positive duty. This includes shops, banks, transport providers, hospitals, hotels; essentially anyone who currently must not discriminate in service delivery. A positive duty would mean they must be proactive in identifying and removing barriers for people with disability in their services. For example, ensuring accessibility of premises and websites, training staff, planning for adjustments in advance. It should also apply to educational institutions, covering schools (government and independent), TAFEs, and universities.

All public authorities should have the positive duty. Government ought to lead by example as a “model employer” and service provider.64 Many government bodies already have obligations via the Australian Public Service values or disability inclusion acts, but a DDA positive duty would solidify and standardise this expectation. This should also extend to local government entities, statutory authorities, and any body performing public functions. The duty should also extend to clubs, qualifying bodies (like professional accreditation boards), and trade unions.

Recommendation 13: The Federal Government should extend the scope of the new positive duty to all entities that currently owe a duty to people with disability under the existing Disability Discrimination Act.

62 Sex Discrimination Act 1984 (Cth) s 47C(1)(b). 63 Sex Discrimination Act 1984 (Cth) s 47A. 64 JFA Purple Orange, ‘Submission to the Department of Social Services on the Federal Government Response to the Disability Royal Commission’ (Submission, August 2024) 12.

15. Are there lessons from the operation of the positive duty in the Sex Discrimination Act that could be incorporated into a positive duty in the Disability Discrimination Act?

The recent introduction of a positive duty in the Sex Discrimination Act 1984 (Cth) (SDA), implemented via the Respect@Work amendments, provides valuable lessons that should inform a DDA positive duty. Key lessons include the need for regulator guidance and enforcement powers, allowing a transition period for duty holders to adjust, and the effectiveness of shifting focus from individual complaints to systemic prevention.65

15.1. Regulatory guidance and collaboration

Following the SDA amendment, the AHRC released guidelines and fact sheets to help organisations understand their positive duty regarding sex discrimination.66 A lesson is that rolling out a positive duty requires strong guidance from the regulator (AHRC), so duty holders know how to comply. For disability discrimination, the AHRC, potentially in partnership with the Disability Discrimination Commissioner, should undertake a robust co-design process to develop detailed guidelines, industry-specific examples, and tools (like checklists or action plan templates) to assist duty holders. This ensures the positive duty does not become a mere box-ticking exercise but a meaningful internal process. The Respect@Work implementation showed cultural change needs education. A positive duty’s success will depend on how well organisations are supported to implement preventative measures such as inclusive recruitment, disability inclusion training and accessibility audits.

15.2. Enforcement mechanism

65 Sex Discrimination Act 1984 (Cth) pt IIB. 66 Respect@Work | Australian Human Rights Commission

The SDA positive duty introduced a compliance enforcement role for the AHRC (with powers commencing December 2023), including conducting inquiries, giving compliance notices, and, if necessary, initiating legal causes of action.67 This provides a crucial lesson: a positive duty without an enforcement mechanism may be ignored by bad actors, while one with regulatory teeth is likely to be taken more seriously. For the DDA, incorporating similar powers is advisable. The AHRC should be empowered to monitor and enforce the positive duty, potentially through the same framework given for sex discrimination. The DRC recommended that a positive duty in the DDA be enforceable by a regulator, not just through individual complaints.68 It is time to move beyond reliance on victim complaints, while recognising that complaints can assist in identifying potential breaches of positive duty. Proactive regulator oversight can address systemic issues more efficiently, and lighten the burden on individuals. Early signs from Respect@Work show that organisations are paying attention because they know the AHRC can audit them. We expect similar compliance motivation if AHRC can audit disability inclusion efforts.

Recommendation 15: The Federal Government should amend the Disability Discrimination Act to empower the Australian Human Rights Commission to monitor and enforce the positive duty.

15.3. Phased implementation and support

The SDA positive duty was not enforced immediately upon royal assent; the law allowed a lead time of about 12 months for businesses to adjust. The AHRC indicated it would focus on education before enforcement. In this instance, there also should be a reasonable commencement period for the DDA positive duty, so duty holders can self-assess and improve practices. During that time, extensive outreach and education, especially to small businesses and community organisations, should occur. A grace period coupled with support will result in more genuine compliance. Government could also provide co-designed resources such as toolkits or even grants for small organisations to make accessible upgrades as part of meeting their positive duty.

67 Australian Human Rights Commission Act 1986 (Cth) pt IIB, div 4. 68 Commonwealth, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023) vol 7, 190.

15.4. What costs, benefits and other impacts would duty holders experience in meeting a positive duty under the Disability Discrimination Act? If you are an existing duty holder under the Act, please specify how you think meeting a positive duty would impact you.

As a small non-profit employer, we already adhere to inclusive principles. Our staff includes a high percentage of people with disability and we practice reasonable adjustments daily. A formal positive duty might mean we document our practices more systematically. The “cost” is minimal since it is our standard operating procedure; the “benefit” is affirming what we do and maybe discovering areas we can improve further. We imagine many conscientious employers are in a similar position, doing the right thing informally and now just needing to codify and ensure consistency. Meanwhile, organisations that haven’t focused on this will find the positive duty pushes them to improve. While we anticipate some submissions may rely on concerns regarding potential costs to justify opposition to a positive duty, it is important to recognise this positive duty will not demand perfection overnight, but rather proportionate steps. The SDA positive duty’s Regulatory Impact Statement found costs were justified by benefits.69

15.5. Reduced complaints and litigation

By proactively addressing issues, duty holders can prevent incidents of discrimination or harassment that might have led to complaints or lawsuits. This saves legal costs, management time dealing with disputes, and potential compensation payouts. It also avoids the reputational damage of being the subject of a discrimination complaint. An inclusive

69 Attorney-General’s Department (Cth), Regulatory Impact Statement: Implementing Australia’s Response to the Respect@Work Report (2022) 35-40.

workplace likely experiences fewer grievances and higher compliance with various standards, which in turn reduces regulatory scrutiny and risk exposure.

15.6. Improved productivity and employee engagement

When workplaces become more accessible and inclusive, employees with disability can perform to their full potential, and all staff benefit from a more flexible environment. Studies often show that accommodations cost relatively little but yield productivity gains. For example, an employee who has access to screen reading software may produce work faster and flexible scheduling can reduce sick days.70 Employees, even those without disability, often value working for an inclusive employer as it boosts morale knowing the organisation cares about its people. This can lead to higher job satisfaction, loyalty, and retention. Lower turnover and the ability to attract a broader talent pool, including talented people with disability who might otherwise avoid applying, are tangible benefits. As we submitted to the DRC, inclusion is not just a legal duty but a “huge dividend” in harnessing skills and diverse perspectives.71

15.7. Innovation and market benefits

By engaging with accessibility, companies often uncover innovations that improve their products and services for everyone. For instance, captioning videos for d/Deaf customers also helps all customers in noisy environments. Voice-activated interfaces originally designed to assist those with mobility issues have become mainstream conveniences. A positive duty could spur businesses to think creatively about serving people with disability, opening up new markets. The disability community represents significant consumer spending power when products are accessible.72 So, rather than a cost, this can be reframed as an investment into quality and innovation, yielding returns.

70 Suzanne Bruyère, ‘Disability Employment Policies and Practices in Private and Federal Sector Organizations’ (2000) 65(2) Journal of Occupational Rehabilitation 87, 95. 71 JFA Purple Orange, ‘Submission to the Department of Social Services on the Federal Government Response to the Disability Royal Commission’ (Submission, August 2024) 15, quoting a corporate submission to the DRC. 72 Accenture, Getting to Equal: The Disability Inclusion Advantage (Report, 2018) 5.

Organisations that actively promote disability inclusion will bolster their public image and brand. In an era where consumers and investors pay attention to corporate social responsibility, meeting a positive duty demonstrates good governance and ethical leadership. Being compliant and proactive in disability inclusion could lead to winning contracts or partnerships that require it. Failing to engage with the positive duty could risk negative publicity or exclusion from such opportunities.

15.9. Cultural and societal impact

On a broader level, duty holders collectively meeting the positive duty will contribute to a more inclusive society. While not a direct “balance sheet” benefit, many employers value being part of positive social change. It can improve workplace culture when employees take pride in being part of an inclusive organisation, which can translate to better teamwork and creativity. For public sector agencies, fulfilling a positive duty helps meet government policy goals, like those in Australia’s Disability Strategy 2021-2031.73

In weighing costs and benefits, initial compliance efforts may have direct costs which might be more concrete and immediate, whereas benefits, like improved productivity and reduced legal risk, accrue over time and are sometimes harder to quantify. However, research and case studies increasingly document that inclusive practices yield net benefits.74 As an example, a Business Council of Australia report found improved employment of people with disability leads to productivity growth and economic gains nationally.75 Duty holders who have already been proactive likely won’t face large new costs because they’re already reaping benefits of inclusion. Those who have lagged may spend more at first to catch up, but they stand to gain the most in terms of workplace improvements and risk reduction.

16. Should there be exceptions or limits to the application of a positive duty?

73 Department of Social Services (Cth), Australia’s Disability Strategy 2021-2031 (2021). 74 Lisa Schur, Douglas Kruse and Peter Blanck, People with Disabilities: Sidelined or Mainstreamed? (Cambridge University Press, 2013) ch 6. 75 Business Council of Australia, Being Equally Well: A Blueprint for Employer Action (Report, 2021) 10.

No major category of duty holder should be exempt at the outset, because inclusivity is a universal obligation. The content of the positive duty, though, is inherently flexible. A very small business might only need a simple action plan, whereas a national company needs a comprehensive strategy.76 We would resist any blanket carve-outs, because that could leave employees of those businesses or customers using those services without proactive protection. During the implementation phase, though, enforcement bodies could prioritise larger or higher-risk entities for oversight.

We do not support a blanket exemption for small entities. Discrimination can and does occur in small workplaces and services, and employees or customers of those businesses deserve the same protections. Moreover, small businesses can often implement inclusive practices with relative ease and benefit from the close-knit nature of their teams to find solutions. As stated, the reasonableness or proportionality standard will naturally expect less formality from a café with five staff than from a bank with 5,000 staff. We want to avoid a situation where an entire sector of workers with disability or patrons are left without proactive protections.

There might be areas where fully eliminating discrimination is structurally challenging but even in such cases, a positive duty can still apply, as it would just require identifying alternative roles or accommodations to the extent possible. The DDA already has inherent requirement and unjustifiable hardship clauses for actual discrimination claims. A positive duty doesn’t override those, so there’s no need to entirely exclude industries such as the defence forces, emergency services or religious institutions. Each will implement the positive duty in their context. For example, the defence force might examine how it can better place personnel with certain disabilities in suitable positions, even if some frontline roles have inherent requirements.77

Recommendation 17: The Federal Government should not include any exceptions or limits to the application of a positive duty in the Disability Discrimination Act.

76 Australian Human Rights Commission, Guidance Note: Positive Duty under the Sex Discrimination Act (2023) 9. 77 X v Commonwealth (1999) 200 CLR 177, 208 [89] (Gummow and Hayne JJ).

17. Would the creation of a stand-alone duty to provide adjustments better assist people with disability and duty holders to understand their rights and obligations?

We support the creation of a stand-alone duty in the DDA requiring duty holders to provide adjustments for people with disability. Introducing an express duty to make adjustments would clarify rights and obligations by making it unlawful to fail or refuse to make an adjustment for a person with disability unless doing so would impose an unjustifiable hardship. This proposal, recommended by the DRC (Recommendation 4.26), would shift the adjustments requirement from an implied element of non-discrimination to a direct statutory obligation. A stand-alone duty will mean that whenever a person with disability needs modifications to access a workplace, service, or educational opportunity, the provider must accommodate them up to the point of unjustifiable hardship. This clear command is easier for both people with disability and duty holders to understand than the current approach, where the requirement for “reasonable adjustments” is folded into the definition of discrimination. It tells everyone, in simple terms, that failing to provide necessary supports is itself unlawful discrimination.

A stand-alone adjustments duty aligns with modern disability rights norms. Article 5(3) of the CRPD obliges States to ensure that reasonable accommodation is provided to achieve equality, and defines the denial of such accommodation as discrimination. By making the duty to accommodate explicit, Australian law would better reflect this international obligation.

This positive framing encourages proactive behaviour. For example, an employer would be expected to consider workplace adjustments as standard practice, rather than only after a complaint. Similarly, service providers and educational institutions would need internal policies to anticipate and implement necessary accommodations, rather than risk being caught out later. We have observed in practice that many instances of discrimination occur through neglect or omission (for example, not installing a ramp or failing to offer materials in accessible formats).

Several jurisdictions already provide models for such a duty. The Australian Capital Territory, for instance, has recently amended its law to introduce a positive duty to make reasonable adjustments for people with protected attributes (including disability) across all areas of public life.78 We endorse the amendment of the DDA federally in a similar way.

Recommendation 18: The Federal Government should amend the Disability Discrimination Act to create a stand-alone duty to provide adjustments unless this would cause unjustifiable hardship.

18. Should the scope of the duty to provide adjustments apply only to the existing areas of public life covered by the Disability Discrimination Act, or extend to other contexts?

We recommend that a stand-alone adjustments duty apply to all areas of public life currently covered by the DDA and for the government to consider extending it to certain additional contexts that are analogous to those already covered. Applying the duty to provide adjustments within existing areas would already represent good coverage, requiring duty holders in employment, education and services sectors to provide adjustments for people with disability. This would be consistent with the DRC’s vision: its recommendation for a stand-alone duty did not suggest limiting it to only some parts of the DDA, and the model provision was drafted in general terms. We support applying the duty across all current protected areas of public life, to maintain uniform protection and avoid confusion that might arise if some sectors had an adjustments duty and others did not.

We also submit that there are a few notable gaps in the DDA’s coverage where the duty to make adjustments could extend to other contexts for greater inclusion. One such gap is unpaid or volunteer work. The DDA’s employment provisions (Part II, Division 1) have been interpreted not to clearly cover volunteers, since the Act refers to employment.79 This

78 Discrimination Act 1991 (ACT) s 7. 79 Application of anti-discrimination laws to volunteer applicants – Australian Emergency Law

means a person with disability volunteering or undertaking an unpaid internship may not be explicitly protected if denied adjustments or excluded on the basis of disability. Volunteering and work experience are important aspects of public life and pathways to employment. The duty to provide adjustments should extend to these work-like contexts.

The CRPD does not confine reasonable accommodation obligations to specific areas of life: the duty is a general one, tied to the enjoyment of all human rights and fundamental freedoms (CRPD Article 2 and Article 5(3)).

19. Would removing the word ‘reasonable’ from the term ‘reasonable adjustments’ to align the language with the legal effect create any unintended consequences?

We support removing the qualifier “reasonable” from the term “reasonable adjustments” in the DDA, so that the law simply refers to “adjustments”. This change in language would better reflect the legal effect of the adjustments provision and help avoid misunderstandings that have arisen in applying the current terminology. The DRC specifically recommended amending the DDA to replace all references to “reasonable adjustments” with “adjustments” (Recommendation 4.25). The rationale is that under the DDA, an adjustment that is required to ensure equality need only be provided up to the point of “unjustifiable hardship”. Any adjustment that does not impose unjustifiable hardship on the respondent is mandated. The term “reasonable” does not add an additional legal threshold beyond this: it is effectively redundant, since unreasonable adjustments are already excused by the unjustifiable hardship clause.

We acknowledge that changing terminology can have pitfalls if not done carefully, but here the change would be mainly semantic and should not alter the substance of the law.

concept of “reasonable adjustment” has sometimes led duty holders to incorrectly believe there is a broad, subjective license to refuse accommodations they deem not “reasonable” in their personal opinion. This subjectivity has been problematic. What is considered “reasonable” is often in the eye of the beholder and too frequently, that beholder is someone with low expectations or poor understanding of disability, such as an employer who underestimates a person’s potential. We have seen cases where adjustments that objectively would not impose much hardship were denied because a manager simply felt they were above and beyond what was “reasonable” to do. Removing the term can counteract this implicit bias by signalling that any necessary adjustment should be made unless it truly causes undue hardship.

There may be a short transition where education is needed: people are used to the phrase “reasonable adjustment” and guidance will have to explain that “adjustment” in the DDA means an adjustment that enables access or equal participation, with the only limitation being unjustifiable hardship. However, this is a minor educational matter. Removing the word “reasonable” has clear benefits in terms of clarity and aligns language with legal reality. We do not anticipate unintended negative consequences beyond a short period of adjusting to the new terminology. To the extent any risk exists, it will be mitigated by the continuing unjustifiable hardship defence.

Recommendation 20: The Federal Government should amend the Disability Discrimination Act to replace all references to “reasonable adjustments” with “adjustments”.

20. What is your preferred approach to achieving greater fairness and transparency in claims of unjustifiable hardship: a. the Disability Royal Commission amendment as proposed b. a new definition of unjustifiable hardship c. other? Please expand on your response.

We support the DRC’s proposed amendments to the DDA’s unjustifiable hardship provisions (Recommendation 4.32) to enhance the existing definition of “unjustifiable hardship” (DDA

section 11) by adding new procedural requirements and clarifying the burden of proof. These changes do not abolish the unjustifiable hardship defence, which we acknowledge is important, but they ensure it will be applied more rigorously and openly, rather than being used as a vague escape clause.

Under the DRC’s recommended amendment, a respondent (duty holder) who wishes to invoke unjustifiable hardship would face two key obligations: documentation and explanation. These requirements inject much needed transparency. Too often in the current system, a respondent asserts “unjustifiable hardship” without clearly articulating why. For example, a school might say “it would have been too expensive to accommodate the student” without itemising costs, or an employer might claim “safety risk” without evidence. With the DRC’s proposal, duty holders would be forced to think through and substantiate their hardship claims.

Another element of the DRC’s approach is making explicit that the burden of proving unjustifiable hardship lies on the respondent. Explicitly codifying the onus of proof in the Act would promote fairness by leaving no doubt that once a person with disability establishes they were treated less favourably or required to comply with a condition, the respondent must prove that accommodating them was not feasible. This aligns with the Fair Work Act 2009 (Cth) which places the onus on employers to prove non-discriminatory reasons in adverse action claims.

We also endorse the DRC’s proposal to insert new factors in section 11 that focus on fairness such as requiring consideration of the nature and extent of consultation with the person with disability and consideration of alternative measures. These are vital questions for fairness. They prevent knee-jerk “too hard basket” claims. For example, suppose a small business says installing an elevator is an unjustifiable hardship; if they never consulted the customer about possibly providing service on the ground floor or another workaround, their claim to hardship would be weak. The law should incentivise dialogue and creativity in problem-solving, rather than allow a blank “we can’t afford it” without further examination. By encouraging consultation and alternative solutions, the hardship inquiry becomes more than a crude cost calculation; it becomes an inquiry into the reasonableness of the respondent’s efforts. This is consistent with contemporary views on disability rights: the

onus is on society and businesses to actively work out how inclusion can be achieved, not to avoid inclusion at the first hurdle.

In choosing between (a) the DRC’s amendment and (b) a wholly new definition of unjustifiable hardship, we favour implementing the DRC’s amendment (a). It directly targets fairness and transparency by making duty holders justify themselves with evidence and by clarifying that they carry the burden of proof. This approach will lead to more robust decision-making: respondents will be incentivised to seriously weigh how to accommodate rather than reflexively invoking hardship, and if they do invoke it, the process will be more transparent to the person with disability. The outcome should be fewer unjustified denials of accommodation and a greater confidence in the system’s balance.

21. What are your views on amending the Disability Discrimination Act to consider the nature and extent of any adjustments made and encourage consultation between prospective or current employers and prospective or current employees before making employment decisions?

We support amending the DDA to require employers to consider the nature and extent of any adjustments made (or that could be made) and to encourage consultation with the person with disability before making employment decisions that affect them. Such an amendment would promote collaborative problem-solving and reduce the risk of abrupt, uninformed decisions that unfairly exclude people with disability from work. Introducing an express requirement of consultation would formalise what should be best practice.

One potential amendment is to add a provision in the employment part of the Act, either in section 15 or as a new section around section 21A, stating that, when determining whether

a person is able to carry out the inherent requirements of a job, the employer must consider any adjustments that have been made or could be made and must, consult with the person concerned about those adjustments. A failure to do so could either be used as evidence in a discrimination claim or even constitute a stand-alone procedural requirement enforceable by the AHRC.

Encouraging and mandating consultation has significant benefits. Firstly, it leads to better decision-making. The employee or job applicant is usually the expert in their own disability and which accommodations might work. If an employer engages in a conversation, they may learn of a solution they hadn’t considered. Secondly, a consultation requirement increases transparency and trust. If after genuine consultation an employer still concludes that it cannot accommodate the person without unjustifiable hardship and that they cannot perform the inherent requirements, the employee is far more likely to accept that outcome as fair. This can reduce conflict and legal actions.

The amendment could explicitly direct decision-makers to consider what adjustments have already been provided and whether they are sufficient, or whether additional adjustments could enable performance. For instance, where an employee has been provided one adjustment (like reduced hours) but still requires more support, before terminating, the employer should consider if additional adjustments (like assistive technology or reallocating a particular task) would resolve the issue. By evaluating the extent of adjustments made, the employer can determine if all avenues have been tried. This could be written into the Act as a factor to be examined in determining if an employer has unlawfully discriminated. It would prevent scenarios where an employer does the bare minimum and then gives up, rather than considering a combination of supports.

22. Are there other amendments to the Disability Discrimination Act that could support engagement between prospective or current employers to better understand the inherent requirements of a job and should any other amendments be made to the definition of inherent requirements, including factors that should be considered when deciding whether a person could carry out the inherent requirements of a job?

Beyond mandating consultation (as discussed above), additional amendments to the DDA could be made to foster better engagement between employers and employees in understanding and meeting the inherent requirements of a job. The goal of these amendments would be to ensure that both parties have a clear, shared understanding of what truly constitutes the core requirements of a role, and how a person with disability might be supported to meet them. We recommend a combination of greater clarity in defining “inherent requirements” and procedural measures that prompt dialogue and flexibility.

The term is not defined in the DDA, which sometimes leads to employers overstating what is “inherent” in a role. For example, an employer might label driving as an inherent requirement of a job that is primarily office-based just because the position historically involved some driving, even if those tasks could be reallocated. We suggest an amendment to define “inherent requirements” as: the essential tasks or functions of the position concerned, which are fundamental to its purpose. This definition could be accompanied by a non-exhaustive list of factors to consider when determining what is essential.

The DDA could be amended to clarify that before concluding someone cannot meet the inherent requirements, a duty holder must factor in any accommodations. This could be achieved by an amendment to section 21A (which deals with adjustments for job applicants) and section 15(4) (the inherent requirements defence for employment) to explicitly state: for the purposes of this section, in determining whether a person is unable to carry out the inherent requirements of the particular employment, regard must be had to any adjustment

that has been made or could be made. This legally enshrines engagement over compliance: an employer would be required to demonstrate that they engaged with possible adjustments for each inherent requirement and found no feasible solution, before they can lawfully exclude a person.

Another amendment we recommend is specifying that adjustments can include reallocating non-essential tasks or modifying how a requirement is carried out. Sometimes an employee can do all the core parts of a job but finds a peripheral aspect difficult. For example, a teacher with mobility support needs might be excellent in the classroom but cannot physically participate in playground duty. An inclusive employer would swap that duty with a colleague. The DDA could support this by stating in the adjustments or employment provisions that the adjustment duty may include changes to the allocation of minor duties or modification of procedures, provided the person can otherwise perform the essential functions.

The DDA should be amended to require that when advertising a position or interviewing candidates, employers articulate the inherent requirements of the role in writing. This could be done through regulations or guidelines rather than the Act itself, but the Act might empower the AHRC to require larger employers to prepare job descriptions that distinguish essential from non-essential criteria. If an applicant with disability knows exactly what the core requirements are, they are in a better position to discuss adjustments with the employer. We have observed that sometimes misunderstandings occur because a job description lists many duties without prioritisation; an applicant might assume they cannot apply because one item seems inaccessible, whereas the employer might have been open to adjusting that duty. If the inherent requirements were clearly labelled, the applicant could engage in a conversation: “I see driving is listed, is that an inherent requirement or could those client visits be done via Zoom?” Codifying a practice of transparency would improve engagement at the earliest stage.

The DDA should also clarify that an employer’s failure to properly consider adjustments or the imposition of irrelevant requirements can itself be evidence of discrimination. For example, if an employer insists on a requirement that is not actually inherent (like a strict

typing speed for a job that doesn’t truly need it) then refuses to adjust it for a person with disability, that should clearly contravene the DDA.

All these measures share a common theme: they shift the focus from a defensive stance (“Can we legally reject this person?”) to a problem-solving stance (“How can we enable this person to fulfill the essential job requirements?”). That shift in approach is precisely what effective engagement is about. It treats the employee as a partner in figuring out how to achieve the inherent requirements, rather than as an applicant to be tested and possibly discarded if they don’t fit a predetermined mould. We believe these amendments, taken together, would cultivate a more inclusive and communicative workplace culture. They would also provide clearer standards for courts when disputes do arise, making the outcomes more predictable and fair.

Recommendation 25: The Federal Government should amend the Disability Discrimination Act (or accompanying regulations or guidelines) to require employers to state the inherent requirements of a role in writing.

23. Should the concepts of exclusion and exclusionary discipline be defined in the Disability Discrimination Act?

We support the introduction of definitions for “exclusion” and “exclusionary discipline” in the DDA. Section 22 currently makes it unlawful to expel a student on the basis of disability, but it does not explicitly mention other forms of exclusion like suspensions, temporary

removals, or other disciplinary withdrawals from education; nor does it define what constitutes an “exclusion” or “exclusionary discipline”. This has led to ambiguity about whether, for instance, repeated suspensions or partial-day exclusions are covered by the Act. Defining these terms would clarify the law and acknowledge the reality of how students with disability can be marginalised through disciplinary practices. We support the DRC’s definition of “exclusionary discipline” as actions by a school that result in withdrawal from education or training, including suspensions and expulsions.

Many students with disability face frequent suspensions or informal exclusions due to behaviours arising from schools not meeting their support needs. For example, a student on the autism spectrum might be repeatedly sent home early (“informal suspension”) because the school feels it cannot manage their sensory or behavioural needs. Such actions can profoundly affect the student’s right to education but may not currently be clearly unlawful under the DDA unless one argues it is a “constructive expulsion” or a detriment in the terms of indirect discrimination. By defining and naming these practices, the law makes clear that they fall within the ambit of discrimination law.

Explicit definitions would bring the DDA into harmony with developments at the state/territory level. For instance, the DRC in its education recommendations urged states/territories to review their regulations to avoid exclusionary discipline except as a last resort. Some states (like South Australia, currently) are moving to amend their education laws to address and limit exclusionary discipline, even introducing reporting obligations for principals regarding suspensions of students with disability.80 By defining these terms federally, the DDA can provide a consistent baseline and vocabulary across Australia. We also endorse the DRC’s recommendation to amend section 22(2)(b) to cover “suspension and exclusion” in addition to expulsion to prevent schools from abusing loopholes, such as by repeatedly suspending a student instead of expelling them.

Definitions should be broad enough to capture subtler forms of exclusion. Schools sometimes use techniques like asking parents to pick up children early, putting a child on a part-time attendance plan without valid reason, or “suggesting” the child move to another

80 South Australian schools response to Disability Royal Commission | Premier of South Australia

school. A definition of “exclusion” as any act that “results in the student being denied or removed from their educational program” would cover these instances by focusing on the outcome, not the label the school uses.

24. Should there be exceptions or limits on when exclusion is unlawful?

Like the DRC, we recommend the DDA impose strict limits on when exclusionary discipline of a student with disability can be considered lawful. Exclusion (including suspension or expulsion) should only be permissible as a last resort, and only in very narrow circumstances such as to prevent serious harm. The DDA should be amended to clarify it is unlawful to subject a student with disability to exclusionary discipline except where it is demonstrably necessary to protect the safety of the student or others and no reasonable adjustments or interventions can mitigate that risk.

We believe the DDA should simultaneously create an exception (or defence) to discrimination in education for cases of genuine emergency or safety necessity. For example, the Act could be amended to include a provision such as: “It is not unlawful for a school to take exclusionary action against a student with disability if, and only if, the student’s conduct poses a serious risk of harm to the student or others, all reasonable steps (including behaviour supports and adjustments) have been taken to address the behaviour, and the exclusion is necessary as a measure of last resort”.

Serious harm should be interpreted strictly. For instance, situations where a student is physically assaulting others, carrying a weapon, or otherwise creating an imminent danger that cannot be defused. Normal behavioural issues, even if disruptive, do not reach this threshold. The DRC’s wording “risk of serious harm to the student, other students or staff” implies not just any harm, but serious harm (like significant injury). If a student’s behaviour

is dangerous (say, throwing objects that could injure others), short-term removal might be necessary while a plan is put in place. But if a student’s behaviour is merely disruptive or difficult (shouting, non-compliance, mild aggression born of frustration), that should be handled through adjustments, not exclusion.

If an exclusion does occur under the serious harm exception, it should trigger certain safeguards. For example, there should be a requirement that the exclusion be as brief as possible, that the school immediately formulate or review a behaviour support plan to avoid future incidents, and that the student be provided alternate educational materials during the exclusion. While these details might reside in regulations or standards rather than the primary Act, the principle could be noted in the Act’s provisions or an objects clause.

25. Would a different approach to exclusionary discipline be more appropriate in the higher education and vocational education and training sectors?

Exclusionary discipline primarily arises in school settings, but it can also occur in higher education and vocational education and training contexts in different forms. Higher education and Vocational Education and Training (VET) providers should generally avoid excluding students with disability, and any necessary discipline should be handled in a way that maintains the student’s access to education to the maximum extent. The mechanisms to achieve this might be more policy-driven or case-by-case, rather than the strict legislative regime we propose for schools.

Unlike schools, adult students are not subject to daily behaviour management by teachers; discipline in higher education is rarer and typically triggered by significant breaches of a

student code of conduct. Universities still owe duties under the DDA and Disability Standards for Education: they must provide reasonable adjustments to students in assessments and coursework, and it’s unlawful to treat a student less favourably because of disability in terms of expulsion or subject exclusion. How adjustments and discipline intersect in higher education can be more complex though. For instance, if a university student with a mental health condition violates conduct rules, the approach might involve both disciplinary considerations and offer of supports.

While the DDA should maintain that discrimination in higher education and VET is unlawful, it does not need the same prescriptive legislative rules as for schools. Instead, guidelines or sector-specific protocols are more appropriate to ensure universities and training providers handle discipline in an inclusive manner. The DDA should require higher education providers to have regard to principles of inclusion and reasonable accommodation when applying any exclusion or disciplinary action against a student with disability. This could be a modest amendment or an enhancement to the Disability Standards for Education. The Standards could be updated to define that in tertiary settings, before excluding a student for inability to meet course requirements, the institution must consider whether adjustments or alternative assessment methods could allow progress. This would mirror the logic of unjustifiable hardship, but in an academic context. When there is exclusion for misconduct, a tertiary educator should ensure the student’s disability context is considered.

26. How could the Disability Discrimination Act be amended to protect people with disability from offensive behaviour or harassment?

Currently, the DDA does not explicitly define “harassment” or “vilification” on the grounds of disability. In contrast, other minority groups including those who experience racial and

religious vilification or harassment are more likely to have at least some protections embedded in federal and state/territory legislation (although these protections vary depending on state or territory). At a federal level, the government recently passed the Criminal Code Amendment (Hate Crimes) Bill in Federal Parliament in 202581 which recognised disability as a “targeted” group disproportionately impacted by hate crime. This Bill, however, only addresses criminal types of interpersonal threat or violence and therefore does not define or address harassment or vilification of people with disability in Australia.

While the true prevalence and extent of harassment and vilification on the grounds of disability remains largely unknown in Australian data, the broader evidence is clear that people with disability are more likely to experience all forms of discrimination and violence more broadly. For instance:

Empirical studies show that a significant proportion of Australians with disability report discrimination or engage in avoidance behaviour because of disability. In the 2015 Survey of Disability, Ageing and Carers, around 9 per cent reported experiences of discrimination and approximately 31 per cent reported avoidance due to perceived or real disability-based hostility.82
The AHRC reported that disability discrimination accounted for the highest number of complaints.83
The DRC highlighted the prevalence and extent of violence, neglect and exploitation disproportionately impacting on people with disability in Australia. The DRC made clear that violence, abuse and neglect may be both interpersonal and systemic in nature.84

This broader evidence contextualises the prevalence and extent of violence, neglect and discrimination in the daily lives of Australians with disability and arguably, harassment, hate speech and vilification on the grounds of disability (such as intimidation, ridicule, hate, revulsion and more). This may include overt verbal, physical or sexual harassment or

81 Criminal Code Amendment (Hate Crimes) Bill 2025 — Parliament of Australia 82 Disability, Ageing and Carers, Australia: First Results, 2015 | Australian Bureau of Statistics. 83 People with disability in Australia, Disability discrimination - Australian Institute of Health and Welfare 84 Final report - Executive Summary, Our vision for an inclusive Australia and Recommendations (2).pdf

passive-aggressive interactions (such as hostile looks, derogatory remarks). For every instance identified, there would be many which are never addressed, particularly when these sorts of harms are minimised, dismissed or normalised and discounted in society or internalised by those experiencing it.

For this reason, it is imperative for the Australian Government to strengthen protections for people with disability in the DDA with specific amendments made to explicitly define and make harassment and vilification on the grounds of disability unlawful. Such amendments would mean that Australia makes a real commitment to addressing “all forms of exploitation, violence and abuse”.85 The routine nature of harassment and vilification inevitably compound over time and cause significant stress and psychological harm. This harm is likely to be discounted due to ableism and lack of understanding more widely in community.

Harassment and vilification not only impact people with disability in the immediate sense of safety (in terms of intimidation, humiliation and fear) but also have a flow on effect in terms of the ongoing psychological injury sustained as a result of regular exposure to routine harassment and vilification. Recent testimonies from the DRC highlighted that many were afraid to leave their home and had withdrawn from society with limited opportunities for education, employment or access to services (not to mention isolation from natural relationships in neighbourhood and community).

There are several barriers that make self-identification or disclosure difficult for people with disability, impacting on how many seek help or support to address and ameliorate the impact of harassment and vilification. These barriers include:

Lack of knowledge of human rights: people with disability may not know they are experiencing harassment or vilification and how to respond.
Internalised ableism: people with disability may dismiss the ridicule, revulsion or hate they experience, believing these negative experiences are justified, accepted, normal or ordinary.

85 Convention on the Rights of Persons with Disabilities | OHCHR

Fear of retribution, harm or repercussions: people with disability may never report or seek help in the face of harassment or vilification out of concern that it will increase the experience, especially if they are labelled as “troublemakers” for raising issues.

It is important to note that few people with disability ever formally report or seek support to address harassment and vilification. Barriers to addressing issues of harassment and vilification are further compounded by lack of clear definitions outlining how harassment of people with disability occurs. When harassment and vilification are not defined and recognised, this entrenches ableism and forces people with disability to internalise harassment and vilification as justified, accepted, “expected” or “normal”. This is compounded by a general widespread lack of community awareness about the nature and extent of harassment and vilifications specific to disability. This means that when people with disability do disclose or seek support and help, they are more likely to experience people in community (bystanders) unintentionally or intentionally dismissing, discounting or not believing the real impact of harassment or vilification. Taken together, the under-reporting of harassment and vilification is unsurprising.

Recommendation 29: The Federal Government should amend the Disability Discrimination Act to clearly and explicitly define and prohibit harassment and vilification on the grounds of disability.

27. If the Disability Discrimination Act were to prohibit offensive behaviour or harassment, how should these terms be defined?

For the purposes of this submission, we define harassment on the grounds of disability as: unwanted conduct based on a person’s disability that has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. This may include publicly mocking, ridiculing, shaming or threatening someone on the grounds of disability. Harassment tends to be interpersonal in nature.

Examples of harassment against an individual on the grounds of disability:

Work manager repeatedly mimicking the way a d/Deaf employee speaks.
Co-workers hiding a colleague’s wheelchair as a “prank”.
Students teasing a classmate with autism by deliberately making loud noises.
A teacher frequently drawing attention to a student’s disability in front of the class, using it as a “lesson” without consent.
Gym staff openly ridiculing a person with cerebral palsy for needing extra time to use equipment.
Colleagues or peers sending abusive messages targeting someone’s disability such as “retard”, “cripple”.

For the purposes of this submission, we define vilification on the grounds of disability as public acts (speech, words, behaviours or actions) that incite hatred, serious contempt, revulsion, or significant ridicule against a person or group on the basis of disability. Importantly, vilification may not target a specific individual but still causes hurt and incites harm against people with disability as a group.

Examples of vilification against a person or group of people with disability:

A radio host on air using hate speech or slurs.
A campaign urging people to block accessible housing developments because “too many disabled people will ruin the neighbourhood”.
A group organising protests outside disability service centres, chanting slogans that people with disability are “leeches” or “bludgers”.
Ridiculing, mimicking or mocking disability on public platforms as a “joke”.

Implementing amendments in the DDA clearly defining harassment and vilification would ensure states and territories also uphold the rights of people with disability and expand pre-existing racial or religious vilification and harassment to incorporate recognition of disability as a targeted group disproportionately impacted.

Recommendation 30: The Federal Government should add a clear definition of disability-based harassment to the Disability Discrimination Act, to recognise the unique ways in

which people with disability experience harassment and ensure consistency in understanding.

28. Should there be exemptions for any behaviour, similar to the Racial Discrimination Act?

Currently in Australia there are limited pathways for seeking help and support for harassment and vilification on the grounds of disability. There are also limited remedies and enforceable compliance powers written into Australian federal law. We recommend strengthening mechanisms for penalties, remedies and compensation in the DDA and support the inclusion of similar exemptions to those listed in the Racial Discrimination Act.

28.1. Strengthening mechanisms for penalties, remedies and compensation

We support the DRC’s recommendations to incorporate sections on harassment and vilification in the DDA, similar to what is currently seen in section 18C of the Racial Discrimination Act 1975 (Cth).86 The Racial Discrimination Act 1975 makes serious vilification and harassment unlawful on the grounds of race and allows for civil claims with pecuniary penalties, injunctive relief and damages. We support harassment or vilification on the grounds of disability to also be actionable allowing people with disability to seek injunctive relief (for example, to restrain further conduct), compensation for harm, and where appropriate, pecuniary penalties.

These remedy mechanisms could also mirror the provisions under sections 18C and 18D of the Racial Discrimination Act 1975. Drawing on established jurisprudence and comparative statutes would ensure that the definitions for harassment and vilification capture unwanted conduct which could include hostile or humiliating environments, as well as interpersonal actions such as persistent complaints, intimidation, or targeting disability. Such amendments ensure that there are pathways and avenues for seeking relief, damages or penalties.

86 Racial Discrimination Act 1975 - Federal Register of Legislation

28.2. Exemptions and special clauses similar to the Racial Discrimination Act

We support freedom of expression and believe that the DDA’s new harassment/vilification provisions should include exemptions similar to those in the Racial Discrimination Act. This includes exemptions such as:

Artistic works: performances, exhibitions, or distributions of artistic works.
Academic, artistic, or scientific purposes: statements, publications, discussions, or debates held for a genuine purpose, such as exploring issues like welfare and neoliberalism of the NDIS.
Fair reporting and comment: publishing accurate reports or commentary expressing a genuine belief regarding disability.

Other exemptions may include special measures that are for the sole purpose of securing adequate advancement of certain disability groups or individuals, to ensure their equal enjoyment of human rights.

Recommendation 32: The Federal Government should amend the Disability Discrimination Act to include exemptions to harassment and vilification.

29. Given the recent legislative developments, are there any further gaps in the legislative framework that could be addressed by amendments to the Disability Discrimination Act to protect people with disability from vilification?

Under the current DDA, discrimination protections are largely structured around three defined areas of community and public life: employment, education and goods/services. It is

important that the coverage of the Act extends beyond these to also recognise harassment and vilification in media and public communications, online and social media spaces, and in the community.

29.1. Media and public communications

Media and public communications are an under-acknowledged setting for disability discrimination. Harm occurs when media outlets, broadcasters, journalists, or public commentators engage in sustained or off the cuff ridicule, stereotyping, or vilification of people with disability in ways that normalise prejudice, incite hate or reinforce harmful community attitudes. Such conduct deprives people with disability of their right to be represented fairly in public discourse and undermines their equal participation in society.

Examples of harassment and vilification in media and public communications may include:

Incitement of contempt or ridicule: a radio broadcaster makes repeated derogatory remarks about people with psychiatric conditions as “nutcases”, “dangerous” or “unfit”.
Television programs or comedy skits that use mocking portrayals of disability as humour, encouraging audiences to laugh at rather than with people with disability.
A fashion label prints and markets t-shirts with ableist slogans such as “retard”.

Testimonies before the DRC described how negative media representation has reinforced ableist stereotypes. The AHRC has similarly recognised that the portrayal of people with disability in the media can contribute to hostile social environments, reinforcing stigma and discrimination.87 To address this, the DDA should be amended to explicitly prohibit vilification in media and public communications contexts. The Act should adopt a clear provision that harassment or vilification (on the grounds of disability) in public communications (whether broadcast, print, or digital) is unlawful, even where it does not target a specific individual but still incites contempt or ridicule against people with disability as a group.

Such amendments should be accompanied by obligations for regulatory bodies (such as the Australian Communications and Media Authority) and industry codes of practice to

87 Federal Discrimination Law 2016 | Australian Human Rights Commission

demonstrate compliance with anti-vilification and harassment standards, including transparent reporting and accessible complaints pathways similar to that outlined by the Victorian Government in their Anti-vilification Reform Report.®® Explicit recognition within the DDA would ensure that media and communications environments reflect Australia’s obligations under the CRPD, particularly Articles 5 (equality and non-discrimination) and 8 (awareness-raising).

Recommendation 33: The Federal Government should amend the Disability Discrimination Act to include the clear provision that vilification (on the grounds of disability) in media and public communications (whether broadcast, print, or digital) is unlawful, even where it does not target a specific individual but still incites contempt or ridicule against people with disability as a group.

Recommendation 34: The Federal Government should include obligations for regulatory media bodies (such as the Australian Communications and Media Authority) and industry codes of practice to demonstrate compliance with anti-vilification and harassment standards, including transparent reporting and accessible complaints pathways.

Social media and online platforms have become some of the most pervasive and harmful sites of harassment and vilification against targeted marginalised communities. This is particularly difficult to address given that the online environment allows abuse to spread rapidly and persistently with relative anonymity in ways that reach a wide audience.®? People with disability are disproportionately targeted with online hate, ridicule, and harassment campaigns with data from the ABS in 2022 reporting a staggering 79 per cent of adults with disability experienced at least one negative online experience in the prior 12 months.2°

Examples of harassment and vilification on social media and online platforms may include:

88 Reports - Inquiry into anti-vilification protections - Parliament of Victoria (2021)

89 eSafety Commissioner (2022), ‘How bad should it be before | tell someone?’ Online abuse experiences of adult Australians with intellectual disability – implications for resource development. Melbourne: eSafety Commissioner.

°° Online safety | Australian Bureau of Statistics (2022)

Targeted online abuse: a person with disability receives repeated, demeaning comments or direct messages using slurs across multiple platforms.91
Coordinated harassment campaigns: online groups challenge members of the community to “spot” visibly disabled people in public for the purpose of “entertainment”, or target disability advocates by mass-reporting their accounts, “doxxing” them, or flooding their posts with abusive content to silence their voices.92
Disinformation and ridicule: viral memes or videos that mock the physical appearance, speech patterns, or assistive technology use of people with disability, normalising community contempt.
Platform inaction: failure by social media companies to remove persistent disability hate speech, despite reports, allowing abuse to proliferate and creating an environment of impunity.

The DRC acknowledged that digital spaces are a growing site of violence, abuse and harassment, with people with disability describing experiences of being “driven offline” by targeted campaigns or constant ridicule. International evidence also shows people with disability experience disproportionately higher rates of cyberbullying and online hate compared with non-disabled peers.

To address this, the DDA should be amended to explicitly prohibit harassment and vilification in digital and online contexts. The Act should adopt a clear provision that serious, repeated, or systemic online conduct on the grounds of disability is unlawful, whether perpetrated by individuals or facilitated by platforms. Such amendments should be accompanied by obligations for digital service providers, including:

91 Pérez de la Fuente, O. (2025). Clicks That Hurt: Persons with Disabilities and the Challenge of Online Hate Speech. In: Pérez de la Fuente, O., Skrzypczak, J. (eds) Bridging the Digital Divide. Palgrave Studies in Digital Inequalities. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-83479-0 11 92 West, R., & Johnson, B. (2024). “I hope you aren’t becoming woke”: New politicised contours of online ableism in response to disability advocacy by 2022 Australian of the Year Dylan Alcott. Australian Journal of Social Issues, 59(2), 517-531.

Platform-facing duties: requirements for online platforms to take reasonable steps to remove disability-based harassment and vilification once reported, consistent with the Online Safety Act 2021 (Cth).
Accessible complaints pathways: ensuring people with disability can easily report online harassment, including Easy Read and Auslan options, and timely responses.
Transparency and reporting obligations: mandating that platforms publish data on disability-based hate and their responses, aligning with broader anti-vilification reporting standards.

Explicitly recognising online harassment in the DDA would ensure parity with protections and reinforce Australia’s obligations under the CRPD, including Article 17 (protecting integrity of the person).

Recommendation 35: The Federal Government should expand coverage of the Disability Discrimination Act to prohibit harassment and vilification in digital and online contexts. The Act should adopt a clear provision that serious, repeated, or systemic online conduct targeting a person or group of people with disability is unlawful, whether perpetrated by individuals or facilitated by platforms. Such amendments should require digital service providers and online platforms to take reasonable steps to remove disability-based harassment and vilification once reported, consistent with the Online Safety Act 2021 (Cth).

29.3. Neighbourhood harassment or vilification

Disability discrimination routinely occurs in people’s own neighbourhoods. It occurs when neighbours, local residents, or community members engage in sustained harassment, intimidation, surveillance, complaints or efforts to socially exclude people with disability with the explicit or implicit purpose of intimidating, bullying or pressuring people to relocate elsewhere, depriving them of their right to peaceful enjoyment of home and neighbourhood.93 Examples of neighbourhood harassment and vilification may include:

93 Temple, J.B., Kelaher, M. & Williams, R. Discrimination and avoidance due to disability in Australia: evidence from a National Cross Sectional Survey. BMC Public Health 18, 1347 (2018). https://doi.org/10.1186/s12889-018-6234-7

Repeated complaints by neighbours to landlords or strata bodies about “issues” relating to a person’s disability. For example, the noise a resident makes, issues with carparking, accessible modifications, or the volume of visitors (such as support workers) coming and going from the premises. All of these may lead to unnecessary scrutiny, eviction threats and/or intimidation and pressure on the resident to leave due to feeling unwelcome.
A family moves into a strata corporation building and has a guide dog; neighbours lodge multiple complaints falsely alleging the dog is unsightly, aggressive or unhygienic, exerting pressure by lodging complaints via local council or homeowners’ associations.
Community residents oppose the presence of a supported living group home and organise petitions or protests arguing that “too many disabled people will lower property values”.

Harassment by neighbours can be physically and psychologically damaging given the proximity and frequency of interactions between neighbours and the potential for multiple interactions and instances of intimidation, surveillance or escalated conflict and abuse occurring over days, months or years. To address and uphold the human rights of people with disability, the DDA should be amended to explicitly prohibit harassment in neighbourhood and community contexts. The Act should adopt a clear provision that harassment (on the grounds of disability) in neighbourhood settings (including residential, strata, tenancy and communal spaces) is unlawful, whether or not it occurs within a formal “public life” domain.

Recommendation 36: The Federal Government should amend the Disability Discrimination Act to adopt a clear provision making harassment on the grounds of disability unlawful in relation to a person’s residence or their local surrounds and neighbourhood. This should include making harassment unlawful in residential, strata, tenancy and communal spaces.

29.4. Mandated data reporting: ensuring experiences of harassment and vilification on the grounds of disability are counted in Australian data

The true impact, cost and prevalence of harassment and vilification on the grounds of disability remains largely under-reported, unrecognised and invisible in Australian data.

Currently in Australia’s legal and policy framework there are no mandated reporting mechanisms to capture the scale, extent and type of harassment and vilification of people with disability in official statistics. The data is also fragmented due to widespread failure by businesses, organisations, and goods and services to capture disability as a ground for harassment or vilification. For example, a tenant facing persistent neighbourhood harassment may instead have their experience recorded as a “general dispute” by the strata corporation without reference to the ableist nature of the complaints, thereby erasing the disability-specific nature of the harassment. This in turn, means that the Australian Government and public cannot prevent or respond effectively.

Without systematic reporting at a state, territory and federal level, the impact of harassment and vilification continues to be erased, minimised, normalised, and under-reported.

We echo the findings from the DRC and call on the Australian Government to amend the DDA to explicitly mandate national reporting of disability-based harassment and vilification. The DRC recommended:

A single, accessible national reporting portal for disability vilification/harassment, incorporating Easy Read, Auslan, and multilingual formats.
Standardised data collection and publication of annual statistics on disability-based hate and harassment to break the cycle of invisibility and enable evidence-based policy.
Victim support mechanisms directly linked to reporting processes, including access to advocacy, counselling, and digital safety assistance from first contact to resolution.

Embedding mandated reporting into the DDA would significantly strengthen Australia’s compliance with Article 31 (statistics and data collection) and Article 16 (freedom from exploitation, violence and abuse) of the CRPD. It would also align with best practice approaches in comparable jurisdictions, such as the United Kingdom, where police and

justice systems maintain disability hate crime reporting and monitoring frameworks.94 Explicit mandated reporting provisions in the DDA would ensure that the issues of harassment and vilification of people with disability are seen, counted and addressed at a systemic level as a social and political issue instead of being seen as an isolated “incident”.

Recommendation 37: The Federal Government should amend the Disability Discrimination Act to ensure there is a mandated requirement for state, territory and federal governments to document and report publicly on disability-based harassment and vilification statistics routinely (e.g. bi-annual or annual).

30. How could the Disability Discrimination Act be amended to ensure that it covers policing?

It is widely established that people with disability are strongly and unfairly over-represented amongst those in contact with the criminal justice system — as victims of crime, as defendants, and as detainees.9596 People with disability also interact with the police for civil justice matters, for example, in situations where people are homeless or experiencing housing eviction, are needing an intervention order, or in relation to community development or neighbourhood activities.

In the final report of the DRC, it was indicated that “people with disability, especially those with cognitive disability, are exposed to frequent and intense policing”.97 The DRC further highlighted that [some] people with cognitive impairments or mental ill health can also

94 Disability Hate Crime and other crimes against disabled people - prosecution guidance | The Crown Prosecution Service (2022)

95 Doyle, C., Dodd, S., Dickinson, H., Yates, S., Buick, F. (2022), ‘There’s not just a gap, there’s a chasm’, The boundaries between Australian disability services and prisons. Report funded by Public Service Research Group at UNSW Canberra, available at: https://disability.royalcommission.gov.au/publications/final-report, accessed in October 2025.

96 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Final Report, Volume 8: ’Criminal justice and people with disability’, pages 33-36. Available online via: https://disability.royalcommission.gov.au/publications/final-report, accessed in September 2025.

97 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Final Report, Volume 8: ’Criminal justice and people with disability’, pages 33-36. Available online via: https://disability.royalcommission.gov.au/publications/final-report, accessed in September 2025.

experience compounding disadvantage in ways that mean they are “more likely to be criminalised and caught up in a cycle of reoffending and incarceration”;98 a cycle with which for many, police are inevitably involved. The DRC emphasised also that the over-representation and discrimination experienced by First Nations people with disability in contact with police and the justice system requires immediate focus and attention.99

We strongly agree that the DDA needs to fully and consistently cover policing and supports the intent of the DRC’s Recommendation 8.19 that “services provided by police officers in the course of performing policing duties and powers” should be included in the definition of services in section 4 of the DDA.100

We recommend, however, that the exact wording added to the DDA regarding policing be broadened, such that it includes all police personnel - both sworn and unsworn staff and any subcontractors, and not solely “police officers” but also police security officers, community constables, case managers, client services officers, police call centre staff and more. We explicitly note the importance that both state/territory and federal police forces be covered.

Recommendation 38: The Federal Government should amend the Disability Discrimination Act to ensure that all interactions or communications with police personnel (both sworn police officers and unsworn police or associated staff) are included by the definition of services in section 4 of the Act.

Police had been covered to an extent by the DDA previously (as indicated in the issues paper for this current DDA review).101 If the DDA were amended to ensure full coverage of policing, we anticipate that there would be a need to work more closely with people with disability, for example, towards incorporating more extensive disability inclusion training

98 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Final Report, Volume 8: ‘Criminal justice and people with disability’, pages 33-36. Available online via: https://disability.royalcommission.gov.au/publications/final-report, accessed in September 2025. 99 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Final Report, Volume 8: ‘Criminal justice and people with disability’, pages 33-36. Available online via: https://disability.royalcommission.gov.au/publications/final-report, accessed in September 2025. 100 Commonwealth, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023). Volume 1, page 277 Available online via: https://disability.royalcommission.gov.au/publications/final-report, accessed in September 2025. 101 Australian Government Attorney General’s Department (2025), Disability Discrimination Act 1992 Review Issues Paper 2025. Available at: https://www.ag.gov.au/sites/default/files/2025-08/DDA-Review-Issues-Paper.PDF, accessed in September 2025.

(delivered and co-designed by people with disability) within police academies, and during ongoing professional development. We envisage any work needed, however, would positively align with the commitment made in response to DRC Recommendation 8.20, which had already required police services to collaborate with people with disability in the co-design, implementation and evaluation of strategies to improve police responses to people with disability, to introduce adequate numbers of dedicated disability liaison officers, and to introduce new alternative pathways for people with disability to report crime to the police.102 This is a DRC recommendation which federal and state and territory governments had already accepted in principle.103

31. Are there any specific circumstances or situations relating to policing or justice that should be excluded from the application of the Disability Discrimination Act?

We do not consider that there are circumstances or situations relating to policing or justice that should be specifically excluded from the application of the DDA.

Recommendation 39: The Federal Government should not amend the Disability Discrimination Act to exclude any circumstances or situations related to policing or justice from its application.

32. How can the Disability Discrimination Act be amended to clarify the protections for assistance animals for both people with disability and duty holders (questions 38, 39 and 40)?

102 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Final Report, Volume 1: ’Executive Summary, Out vision for an Inclusive Australia and Recommendations’, page 277. Available online via: https://disability.royalcommission.gov.au/publications/final-report, accessed in September 2025. 103 Australian Government (2024), Australian Government Response to the Disability Royal Commission July 2024, Available online at: https://www.health.gov.au/resources/publications/australian-government-response-to-the-disability-royal-commission, accessed in September 2025.

Assistance animals provide valuable support to people with disability, by performing specific tasks that offer individualised support to their user, such as medical alerts or daily tasks in the home. Assistance animals also create opportunities for people with disability to travel out of the house independently and safely, supporting their participation in the wider community. It is critical that this essential support is acknowledged by the public and businesses across Australia, and that assistance animal teams feel confident that they will be recognised and respected in public. We recognise that to achieve this, further clarity on behaviour standards, training requirements and evidence is needed for both assistance animal users and duty holders.

The support tasks that each assistance animal is trained for will vary depending on the needs of the assistance animal user. Assistance animals should also be trained and assessed for behaviours that are not expected of companion animals, such as how they interact with mobility aids, as well as their tasks specific to the user. Therefore, we support an iterative guidance-led approach to describing behaviour expectations and minimum training standards for assistance animals, rather than prescribing specific training organisations in regulations.

These specific behaviours outlined in guidance should be assessed in a nationally consistent Public Access Test (PAT), as outlined in the proposed Assistance Animals National Principles.

If the PAT is a thorough assessment of the behaviour standards outlined in the guidance, then passing a PAT should be the necessary evidence that an assistance animal is appropriately training to be working in public.

Therefore, the minimum training standards and PAT should not just focus on individual tasks to be performed but also describe a more general “code of conduct” for how the animal should behave in public settings, as well as in the home. This should include the general principles that should apply to all animals in public:

How the animal interacts with other animals.
How the animal interacts with other people.
How the animal interacts with mobility aids.
On and off leash walking behaviour.
Reliable recall where applicable.

Calm and neutral behaviour in busy public spaces or enclosed environments, including public transport, shopping centres, medical facilities, etc.

Recommendation 40: The Federal Government should develop national guidance, as part of the proposed Assistance Animals National Principles, describing the expected behaviours and training standards for assistance animals.

It is important that the behaviours assessed in the PAT are consistent with those described in the guidance on minimum training standards, including the behaviours outlined above. PATs should be performed each year to ensure that the animal continues to be safe to work in public. However, the cost of repeat assessments should be kept low and funding support provided where possible, including assistance animal users with NDIS funding support. Consideration should be given to how inclusive the PAT is, including where it is located and the site accessibility, what reminders are given before reassessment is required, and how to support the assistance animal user’s access needs.

A PAT should not just be an opportunity to assess the animal’s behaviour but also act as a safeguarding opportunity. The PAT assessor should support the assistance animal user by ensuring that the animal is still able to support their needs, that they feel confident and comfortable working with their assistance animal and identify any welfare concerns with the animal.

For that reason, we also suggest that PAT assessors and accredited animal trainers should receive a mandatory training module on disability inclusion, so that they have increased awareness of:

Community attitudes towards disability and the negative experiences assistance animal users might have.
Language and communication access needs.
How to ensure training events and meetings are inclusive and accessible.
How to speak and interact appropriately with people with disability.

Recommendation 41: The Federal Government should develop guidance on how Public Access Tests should be made accessible to assistance animal users, including their frequency, cost and locations. This should be included as part of the guidance in the proposed Assistance Animals National Principles

Recommendation 42: The Federal Government should introduce a mandatory disability inclusion training module for accredited animal trainers and Public Access Test assessors, to be included as part of the guidance in the proposed Assistance Animals National Principles

If minimum training standards and a single national PAT are implemented, that should be sufficient to ensure assistance animals are trained to a high and consistent standard across Australia. We are concerned that prescribing specific training organisations into the Disability Discrimination Act or other regulations might introduce training “bottlenecks” and reduce the overall capacity for assistance animal training in Australia. These impacts may include:

Accreditation of trainers might inadvertently minimise the opportunity for assistance animal users to train their own assistance animal.
The process of accreditation may place an unfair burden on smaller training businesses or individuals, who often train assistance animals for personalised needs, as opposed to large organisations that train more generalised assistance animals.
People with disability living in regional or rural areas might struggle to access specific training facilities, which might be necessary to receive handler training with an assistance animal and to return to the facility for ongoing training.
We also have concerns about how training organisations are identified and chosen to be written into regulation. This would likely require the development of a formal accreditation process and the implementation of a regulatory body. It will be a lengthy process to develop these regulatory structures, meaning assistance animal users and duty holders will not have clarity until those structures are in place.

We also suggest that any accreditation process should be an opt-in independent and industry-led process, where smaller training organisations or owner-training assistance animals will not be unfairly penalised.

Recommendation 43: The Federal Government should not amend the Disability Discrimination Act to include mandatory training requirements for assistance animals or prescribe specific training organisations in the regulations. Instead, the expected training

standards should be described in the proposed guidance as part of the Assistance Animals National Principles.

In addition to the animal welfare standards described above, there should be greater legal protection of assistance animals which recognises the impact and consequences should they be injured during active service. If an assistance animal is injured it may result in them being temporarily or permanently unable to work, which can significantly impact the quality of life of the person they are supporting. Injury can also incur costs to the assistance animal user, such as vet bills and any costs associated with making alternative arrangements if their assistance animal is unable to work (e.g. requiring a support worker instead).

We suggest amending the DDA to strengthen legislative protection of assistance animals, specifically stating that intentional attacks on an assistance animal be considered discriminatory. An example is the amendments made by the United Kingdom to their Dangerous Dogs Act 1991, where they:

Extended the Dangerous Dogs Act to include greater protection for dog attacks on assistance dogs, regardless of whether the assistance animal user was injured.
In some cases, an attack on an assistance dog may be perceived as a hate incident or crime if an owner deliberately provokes an attack on an assistance dog.
An attack on an assistance dog is regarded as an aggravated offence.

Recommendation 44: The Federal Government should amend the Disability Discrimination Act to provide greater protections for assistance animals, including describing intentional harm to assistance animals as discrimination.

33. Should there be minimum requirements for action plans (such as through guidelines) and what should the minimum requirements cover?

Disability Action Plans (DAPs) are an integral part of combatting discrimination and achieving compliance with the DDA. A key advantage of developing and implementing a DAP is that it requires government departments, businesses, organisations, service providers or groups to actively and explicitly identify and address barriers and discrimination. We contend that there should be minimum requirements for DAPs, and that those

requirements should be prescribed in the legislation or regulations. Ongoing work, however, is essential to ensure that DAPs are genuine mechanisms for accountability and meaningful ongoing change, and not merely “box-ticking” exercises.

33.1. Mandating Disability Action Plans more broadly

According to the DDA at present, completing DAPs is voluntary. At the state and territory level, however, almost all state and territory governments over recent years have progressed inclusion by mandating their own government departments to complete Disability Access and Inclusion Plans (DAIPs) (or similarly-named plans) aligned with state and territory disability inclusion-focused legislation.104

Given existing provisions make it unlawful to discriminate in the administration of federal laws and programs,105 as part of the DDA review we recommend mandating federal departments and associated federal public authorities, to complete DAPs. Given that most but not all state/territory governments currently mandate DAIPs (or equivalent) for state/territory governments, and that only some mandate the completion of DAIPs at the local government level: we recommend mandating DAIPs or DAPs be completed by all government departments, at all levels of government. We suggest that DAPs could also be mandated for other organisations, businesses or authorities where there are obligations under existing or new disability standards (as discussed in the next section of this submission).

To further encourage the adoption of DAIPs, we believe that the Federal Government should also consider introducing further mechanisms to incentivise and encourage organisations or groups not already mandated to complete DAPs, such as advantage when procurement processes are occurring and access to other benefits or supports.

Recommendation 45: The Federal Government should amend the Disability Discrimination Act to mandate Federal Government departments, State/Territory governments, Local

104 (Note: Throughout this section of the submission, we will use the term Disability Action Plan (DAP) to mean plans developed in line with the DDA, and Disability Access and Inclusion Plan (DAIP) as a generic term for plans required by state or territory legislation.) 105 Disability Discrimination Act (1992) (Cth), Part 2, Division 2, Section 29.

Governments/Councils, and public authorities to develop, deliver and implement Disability Action Plans as part of their efforts to prevent and address discrimination.

Recommendation 46: The Federal Government should seek out additional ways to incentivise organisations, businesses and groups to complete Disability Action Plans, such as through procurement advantages or access to other benefits.

33.2. Minimum requirements for Disability Action Plans

At JFA Purple Orange, we have extensive experience working with state government agencies and local councils in the development of Disability Access and Inclusion Plans across South Australia. Our recommendations as to minimum requirements for DAPs are based on this experience.

33.2.1. Consultation and co-design

There should be a minimum requirement of public consultation with people with disability and other relevant stakeholders as part of the development and review of DAPs. It should be clearly outlined, however, that best practice is co-design and that we encourage that DAPs be co-designed with people with disability (as defined in our Co-design guide), to the greatest extent possible.

The Australian Capital Territory’s Disability Inclusion Act 2024 requires consultation as a minimum but also includes the following:

A requirement to take all practicable steps to ensure that the people consulted in developing and reviewing of disability inclusion plans, reflect the diversity of the community (the legislation explicitly mentions multiple dimensions of diversity).
A requirement that the consultation be carried out in ways that support collaborative working relationships and that they be accessible and inclusive for those participating.

We suggest each of the above could be incorporated in relation to minimum DAP requirements for co-design or consultation processes.

33.2.2. Different requirements for different size/types of organisations/groups

Minimum requirements for a DAP should be proportionate to the size of the relevant department, organisation or group and its impact. Certain requirements might only apply to larger entities, for example. A tiered approach could be applied.

To assist organisations to understand how to apply the requirements in their particular context, we suggest that current AHRC guidelines need to be strengthened and expanded, such that they are relevant to different sizes/types of organisations, as what is needed from a small organisation, or informal sporting group or choir, is likely to be quite different to that required from a large organisation or government department. The guidelines themselves should be co-designed with a diverse group of people with disability, disability advocacy and representative organisations and other stakeholders.

33.2.3. Actions which address discrimination experienced by people across the disability community

Early evidence analysing DAPs identified a tendency for plans to focus on the built environment and physical accessibility106 and to prioritise actions which respond to barriers experienced by people with visible disability. Given that disability is not visible for many people with disability, we emphasise the importance of ensuring that the choices of action reflect the needs and priorities of the full range of people interacting with that organisation or department, also inclusive of those with intersectional identities.

33.2.4. Outcome areas for action

In setting minimum requirements for DAPs, the federal government should also set out which topics/outcome areas must be covered in DAPs.

While this list of topics should be co-designed with the disability community, we submit the following topics for consideration. This list is based on existing requirements for state and territory DAIPs and the views of JFA Purple Orange staff with experience working with organisations developing their DAIPs.

Accessible information, communications and events.

106 McGrath (2008), What Do They Say They are Doing? Thematic analysis of local government Disability Action Plans, Annals of Leisure Research, Volume 11, 2008 1-2.

Staff education and training (on topics such as disability awareness, disability rights and inclusion), with the aim of building organisational capacity towards universal design approaches.
Co-design.
Employment of people with disability (including in leadership).
Leadership.
Physical accessibility (e.g. of infrastructure, building and facilities).
Service quality/quality of experience and addressing attitudinal barriers.
Plans to ensure compliance with any relevant Disability Standards (please refer to discussion of this topic later in this submission).

Ideally organisations should be supported to develop DAPs with substantial, ambitious and coherent actions, that can contribute to achieving a disability-informed workforce, and an inclusive workplace culture.

33.2.5. Support from an independent authority

There should be a federal independent authority available to provide proactive education, support and guidance for organisations as they build their DAPs. We envisage this authority should fulfil a similar role to what, for example, Reconciliation SA (or its other state-based partners) do in supporting organisations developing Reconciliation Action Plans. This authority should have particular focus on working with organisations to develop and improve the effectiveness of their DAPs, including by supporting cross-organisational learnings, and in monitoring and requiring the development of effective actions. In some states and territories there are already public authorities fulfilling this role, however, we would like to see more active support consistently available.

33.3. Data, monitoring and evaluation of Disability Action Plans

There should be a minimum requirement for annual progress reporting on DAPs, and a full review of progress at the conclusion of each DAP.

33.3.1. Improving the effectiveness of Disability Action Plans and Disability Access and Inclusion Plans

Alongside efforts to strengthen the requirements for DAPs, we would welcome additional disability-led academic research to better articulate and share lessons on what makes a DAP or a DAIP effective (or more effective) in different settings and circumstances. Such research should take account of and embed learnings from what Dr Robin Banks refers to as “the psychology of stigma, prejudice and discrimination”,107 as well as learnings from organisational psychology, around what good change management processes look like. We would also welcome research looking at how to strengthen outcomes specifically for people with disability experiencing intersectional barriers, via DAPs.

Recommendation 47: The Federal Government should introduce minimum requirements for Disability Action Plans. These should:

Be proportionate to the size and impact of the department or organisation completing a Disability Action Plan.
Include requirements to consult (or, ideally, co-design) with people with disability and related stakeholders as Disability Action Plans are developed and reviewed.
Set out a list of topics/outcome areas (co-designed with the disability community) that DAPs are required to cover.
Require all departments and organisations developing a Disability Action Plan to work with an independent authority to ensure they deliver a quality plan.
Require all departments and organisations that have completed a Disability Action Plan to provide annual progress reports and undertake a review at the conclusion of each Disability Action Plan.

Recommendation 48: The Federal Government should fund an independent authority/s to support departments, organisations and groups to develop and implement effective Disability Action Plans, and to support ongoing quality improvement.

Recommendation 49: The Federal Government should commission research led by lived experience academics which provides guidance on what makes Disability Action Plans and Disability Access and Inclusion Plans most effective in different contexts.

107 Banks, Robin (2023). A rose is a rose is a rose : but not all discrimination smells the same. An exploration of the capacity of the psychology of stigma, prejudice and discrimination to enhance discrimination law. University of Tasmania. Thesis. https://doi.org/10.25959/25194221.v1

34. Should the Australian Human Rights Commission be able to reject action plans that fail to meet these requirements?

We believe the AHRC should be able to reject action plans that fail to meet the requirements. We would envisage, however, that if there is required engagement with an independent authority and support made available to duty-holders as they develop their Disability Action Plan, then hopefully the Disability Action Plan development process would become an educative experience, rather than reaching a final point where Disability Action Plans are rejected.

Recommendation 50: The Federal Government should authorise the Australian Human Rights Commission to reject Disability Action Plans that fail to meet minimum requirements.

35. Should there be a set period of time for which an action plan is valid?

Based on our experience, we believe that three to four years is an ideal timeframe for a DAP. We believe that the DDA should prohibit DAPs from being less than two years or more than five years in duration (except in extenuating circumstances). In line with expectations of many of the states and territories, and as mentioned above, we recommend there should be annual reporting, and a review at the conclusion of the DAP. If the DAP is valid for a longer period, we suggest that there should also be consideration of a mid-term review.

Recommendation 51: The Federal Government should amend the Disability Discrimination Act to prohibit Disability Action Plans from being less than two years or more than five years in duration, except in extenuating circumstances.

Recommendation 52: The Federal Government should amend the Disability Discrimination Act to require annual reporting on Disability Action Plans, and reviews at the end of a Disability Action Plan.

There are critical lessons to be learned from the governance approach and mechanisms which underpin the development and implementation of Reconciliation Action Plans (RAPs). RAPs have stages — Reflect, Innovate, Stretch and Elevate — designed to encourage organisations to choose actions based on where the organisation is currently situated. We propose that similarly there should be stages (albeit with distinct names) for DAPs. When developing a RAP, there is also an expectation to work closely with an independent authority (in SA, Reconciliation SA); there are guidelines, as well as templates, and support with reviewing drafts, to seek to ensure effective actions are being designed, but also for support as learning occurs. These are each transferable to the context of DAPs too.

Recommendation 53: The Federal Government should strengthen the Disability Action Plan process by requiring all departments or organisations developing a Disability Action Plan to pass through a series of stages, reflecting how far they have come in understanding and promoting disability inclusion.

37. How could compliance with and enforcement of the Disability Standards be improved?

The DDA and its Disability Standards in transport, education, and premises access establish important accessibility requirements, but their effectiveness has been undermined by weak enforcement mechanisms. As with the current DDA complaints-based model generally, complaints regarding the application of the Standards have proven inadequate in driving systemic change. After two decades of the Transport Standards, for example, many public transport systems missed the 100 per cent accessibility targets set for 2022, reflecting a lack of accountability for non-compliance.108 As the Australian Coalition for Inclusive Education (“ACIE”) has observed, anti-discrimination laws alone, especially when enforced only

108 Public transport remains inaccessible as… | Disability Support Guide.

reactively, are limited in advancing genuine inclusion.109 To fulfill Australia’s obligations under the CRPD and to meet community expectations, stronger proactive compliance and enforcement measures are needed.

We recommend the Federal Government establish an independent oversight authority. An independent statutory body should be empowered to oversee and enforce the Disability Standards on an ongoing basis. This body would monitor compliance across sectors, investigate systemic breaches, and avoid the conflicts of interest inherent in government agencies policing their own compliance. The DRC recommended creating a National Disability Commission with broad oversight powers to monitor rights and standards implementation.110 Vesting an independent authority with “own-motion” investigatory powers, and the ability to conduct compliance reviews, rather than waiting for complaints, would greatly improve accountability. This aligns with recent reforms to the AHRC.111 This regulator should be able to issue binding compliance notices and, if necessary, initiate proceedings or impose sanctions for serious or persistent breaches, reinforcing to duty holders that they must take their obligations seriously.

Secondly, the DDA should be amended to require the implementation of mandatory reporting by, and auditing of, duty holders regarding their level of compliance to their applicable standard. Clear reporting obligations would shift the onus onto duty holders to demonstrate their progress towards accessibility. These reports, to be submitted to the independent oversight body, would detail both current compliance status and future action plans for meeting any remaining requirements. These should be published in an accessible online database to promote transparency and allow public scrutiny. Complementing self-

109 Australian Coalition for Inclusive Education, Driving change: A roadmap for achieving inclusive education in Australia (CYDA, 2021) 14 (calling for review of the DDA and Standards, and adoption of proactive inclusive education legislation.

110 Final Report - Volume 5, Governing for inclusion | Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability Recommendation 4.18.

111 Public Interest Advocacy Centre, Recent Changes to federal discrimination powers and complaint processes, May 2023, 23.05.29-Fact-Sheet_Recent-changes-to-federal-discrimination-powers-and-complaint-processes.pdf.

reports, the oversight body should conduct independent audits to verify the accuracy of reporting and to randomly spot-check compliance on the ground. Regular auditing will discourage paper compliance and give the public confidence that reports reflect reality. The oversight authority can then compile comprehensive progress reviews to identify trends, flag areas of concern, and guide government policy updates. Embedding such reporting and auditing requirements in the regulatory framework moves compliance from an honour system to an accountable, evidence-based regime. This aligns with the recommended positive duty under the DDA but extends this to the Standards.

Thirdly, the DDA should be amended to strengthen compliance deadlines and outcomes. Given the current Standards included long transition periods that lapsed without full compliance, the revised approach must insist on timely outcomes. Duty holders should be subject to a robust compliance schedule with clear interim milestones to keep progress on track. For example, if legacy infrastructure is given until 2032 to meet updated Standards, there should be staged targets (e.g. 25 per cent, 50 per cent, 75 per cent compliance by certain dates) and regular checkpoints enforced by the oversight authority. This prevents interminable delays and ensures continuous improvement rather than last-minute panic. Governments should not reward or excuse non-compliance by further extending deadlines; a point strongly emphasised by people with disability who have already waited decades for basic access. Instead, failure to meet a mandated milestone should trigger enforcement action, such as enforceable undertakings or penalties, creating real consequences for inaction. No Australian should have to wait generations to access public transport, education, or buildings; the law must demand urgency in delivering equal access.

Recommendation 54: The Federal Government should establish an independent statutory oversight authority body empowered to oversee and enforce the Disability Standards on an ongoing basis. This body would monitor compliance across sectors, investigate systemic breaches, and avoid the conflicts of interest inherent in government agencies policing their own compliance.

Recommendation 55: The Federal Government should amend the Disability Discrimination Act to require the implementation of mandatory reporting by, and auditing of, duty holders regarding their level of compliance to their applicable Disability Standard.

Recommendation 56: The Federal Government should amend the Disability Discrimination Act to strengthen compliance deadlines and outcomes such as by requiring staged targets (e.g. 25 per cent, 50 per cent, 75 per cent compliance by certain dates) and regular checkpoints enforced by the oversight authority.

38. Should the Disability Discrimination Act be amended to encourage relevant duty holders to self-report on their compliance with the Disability Standard(s) in disability action plans?

We support the government amending the DDA to more strongly encourage duty holders to self-report on their compliance with Disability Standards in their DAPs. Incorporating Standards compliance into DAPs would transform the plans into a proactive tool for accountability. Currently, under section 60 of the DDA, organisations can voluntarily lodge DAPs outlining their strategies to eliminate disability discrimination. However, there is no specific requirement that these plans report on compliance with any applicable Disability Standards. This is a missed opportunity. By amending the DDA to tie action plans explicitly to the Standards, duty bearers will need to engage with the concrete benchmarks set by law, rather than offering only general statements of intent.

Requiring self-reporting on Standards compliance in DAPs has several benefits. Firstly, it prompts each organisation to conduct an internal audit of how it measures up against the detailed criteria of the Standards in accessible transport, education, premises, or other areas. This self-assessment process alone can drive awareness and improvements, as entities identify gaps and commit to specific actions to close them. Secondly, including compliance information in a published action plan increases transparency; it allows people with disability and the wider community to see how a service provider or agency is performing relative to legislated benchmarks. For example, a university’s DAP would outline how it complies with the Education Standards, such as curriculum adjustments and the physical accessibility of their campus, and when it does not yet comply, what steps will be

taken and by when. This openness creates external pressures and reputational incentives to improve; most organisations will not want to be seen to be lagging behind their peers in meeting basic accessibility requirements.

Aligning action plans with Standards would integrate compliance into business planning. Rather than treating accessibility as a stand-alone consideration, it becomes embedded into the organisation’s strategic roadmap. Many state jurisdictions already mandate DAIPs (or equivalent) for public authorities. For instance, NSW112 and South Australia113 require government departments to have plans aligning with state disability inclusion goals. Amending the DDA to similarly prioritise Standards compliance in DAPs would extend this best practice nationally and to private sector entities. It would effectively make the DAP a living compliance document.

To implement this, the DDA amendment should require a DAP to include:

An outline of the measures the organisation has in place to comply with each relevant Disability Standard.
An identification of any areas of partial or non-compliance.
Specific strategies with timelines to achieve full compliance or higher accessibility targets.

The Act might also empower the AHRC to develop guidelines on this process (as discussed in Question 47) and even to request further information or updates from organisations on their progress. While initially this requirement might be framed as an encouragement to avoid deterring voluntary uptake of DAPs, in time it could become a de facto minimum standard for any serious DAP. Organisations that submit superficial plans which ignore their statutory responsibilities would risk their credibility and could be called out publicly.

Integrating self-reporting into DAPs complements the stronger enforcement framework discussed above. It creates a culture of self-evaluation and responsibility. Duty holders would be incentivised to not wait for an audit or complaint; they would reflect annually or

112 Disability Inclusion Action Plan | NSW Government. 113 Inclusive SA - State Disability Inclusion Plan.

biannually on how well they are doing and where they need to invest effort or resources to improve. This would also feed valuable information to regulators and the community. Patterns or common shortfalls could be identified from multiple action plans, informing where systemic improvements or additional guidance are needed. For instance, if many businesses report difficulty complying with a particular technical standard, the regulator might issue clarifications or updated guidelines.

Recommendation 57: The Federal Government should amend the Disability Discrimination Act to require Disability Action Plans to align with relevant Disability Standards. This would require every Disability Action Plan to include:

An outline of the measures the organisation has in place to comply with each relevant Disability Standard;
An identification of any areas of partial or non-compliance; and
Specific strategies with timelines to achieve full compliance or higher accessibility targets.

39. Could the Australian Human Rights Commission provide additional guidance to duty holders regarding how to self-report on the Disability Standards in disability action plans?

The AHRC, through the Disability Discrimination Commissioner, should provide additional guidance to duty holders on how to effectively self-report on Disability Standards compliance in their DAPs. Such guidance would be beneficial in improving the quality, consistency, and usefulness of the information reported. While the AHRC already publishes general guides on developing DAPs, more detailed direction is needed to ensure organisations explicitly address their performance against the Standards.

Practical guidance materials could include templates, examples, and checklists. For instance, the AHRC could develop a template action plan section for reporting on each Disability Standard. This might involve a checklist of major requirements under the Transport

Standards, where the entity can tick “compliant”, “partially compliant” or “not yet compliant”, with a comments field for evidence or explanation. Providing exemplars from anonymised or model action plans would show what a high-quality compliance report looks like. By illustrating concrete metrics and time-bound targets, the AHRC can guide organisations to move beyond vague statements.

Additionally, guidance should clarify how to measure and demonstrate compliance. Duty holders may be unsure how to self-audit their compliance with technical standards. The AHRC could publish plain-language summaries of each Standard’s key obligations and suggest data sources to use. For example, for the Education Standards, an educational institution might be guided to report on the percentage of staff trained in inclusive education practices, the number of accessibility modifications made to campus facilities, or outcomes like enrolment and retention rates of students with disabilities. By recommending such indicators, the AHRC helps duty holders adopt a more quantitative and outcome-focused approach to self-reporting.

The AHRC is well-placed to offer this guidance not only through written materials but also through workshops or training sessions. Many organisations, especially smaller providers or businesses, may lack internal expertise on accessibility compliance. The AHRC could host webinars or communities of practice forums on developing a robust DAP, including how to conduct self-assessments against the Standards. It could invite speakers from organisations that excel in this area to share their processes. Such capacity-building efforts would bolster overall compliance by equipping duty holders with the knowledge to identify gaps and innovate solutions. This educative role of the AHRC complements its enforcement role, it is far better to prevent non-compliance through guidance than to deal with breaches afterwards.

Finally, ongoing feedback and refinement are crucial. The AHRC might institute a system of reviewing a sample of action plans each year and providing confidential feedback to organisations on how they could improve their reporting. Insights from these reviews could inform periodic updates to the public guidelines. Over time, as best practices evolve, the AHRC’s guidance would ensure that Australia’s approach to DAPs remains at the cutting

edge, encouraging not just minimum compliance, but the sharing of innovative practices that exceed the Standards.

Recommendation 58: The Australian Human Rights Commission should co-design written materials, workshops and training sessions which provide guidance to duty holders on how to comply with the Disability Standards.

Recommendation 59: The Australian Human Rights Commission should institute a system of reviewing a sample of action plans each year and providing confidential feedback to organisations on how they could improve their reporting.

40. Permanent exemptions under the DDA

The DDA’s permanent exemptions that deem certain otherwise discriminatory acts to be lawful were crafted to balance the Act’s equality objectives with other policy considerations and societal interests. More than thirty years on, it is timely to ask whether these carve-outs remain necessary or could be narrowed. As the Issues Paper states, the DRC has noted that while rights are not absolute, any limitations “should clearly and precisely frame” how they curtail the rights of people with disability. To align with Australia’s obligations under the CRPD, exemptions must be strictly justified and kept to the minimum necessary. We submit most of the permanent exemptions in the DDA can be refined to better safeguard the dignity and equality of people with disability, without unduly compromising legitimate policy aims.

40.1. Special measures (section 45)

Section 45 of the DDA exempts certain “special measures” from being unlawful discrimination. The DRC observed that the special measures exemption is of “particular significance” to the lives of people with disability, enabling initiatives that actively promote inclusion. We support the retention of a robust special measures provision. If any changes were made to this provision, it should be to strengthen and clarify, not narrow. We support the AHRC’s recommendation that the government inserts a definition of “special measures” aligned with the goal of achieving substantive equality, as exists under section 7D(4) of the

Sex Discrimination Act 1984 (Cth).114 This would guard against misuse of the term and ensure special measures are genuinely benevolent in purpose. We also recommend the Act be amended to empower the AHRC to certify special measures (upon application by an organisation) to give stakeholders confidence that proactive inclusion programs are lawful.115 Such reforms would encourage more positive action to advance the human rights of people with disability, consistent with the DRC’s findings that special measures are a key tool for equality.

We recommend that the Federal Government revise the term ‘special measures,’ as it is reminiscent of terms such as “special needs” and “special schools”. Such language can be perceived as stigmatising and patronising. It also implies that measures that proactively promote inclusion are somehow “different” and “special”, rather than recognising that these are an important way of upholding the rights of people with disability.

Recommendation 60: The Federal Government amend the Disability Discrimination Act’s definition of special measures to align with the definition in section 7D(4) of the Sex Discrimination Act 1984 (Cth).

Recommendation 61: The Federal Government should amend the Disability Discrimination Act to grant power to the Australian Human Rights Commission to certify special measures upon application by an organisation.

Recommendation 62: The Federal Government should amend the Disability Discrimination Act to replace the phrase “special measures” with less stigmatising, more rights-based language, such as “positive measures” or “proactive measures”.

40.2. Superannuation and insurance (section 46)

Section 46 permits discriminatory treatment in superannuation and insurance if the discrimination is reasonably based on actuarial or statistical data, or other relevant factors.

114 AHRC SDA Special Measures Guidelines 2018.pdf

115 Disability Discrimination Act 1992 (Cth) s 45; Australian Human Rights Commission, Free and Equal: An Australian Conversation on Human Rights (Report, 2021) 127–30.

Balancing actuarial fairness with equality is important, however, we submit that this exemption should be updated to reflect current knowledge and safeguards. In the decades since 1992, data quality and anti-discrimination norms have evolved. Insurers should not be given free rein to rely on outdated or untested assumptions about disability. We recommend tightening section 46 by requiring greater transparency and accountability for its use. For example, if an insurer invokes this exemption, it should be prepared to produce contemporary actuarial data or research substantiating the differential treatment. We also recommend the regulator or the AHRC be given the power to periodically review whether industry practices under this exemption remain reasonable and evidence-based. Section 46 can be narrowed to prevent unjustified discrimination while still allowing legitimate risk assessment. People with disability must not be denied insurance or superannuation on speculative grounds; any exclusion must be a proportionate means of achieving a legitimate aim, grounded in rigorous evidence.116

Recommendation 63: The Federal Government should amend the Disability Discrimination Act to require insurers to produce contemporary actuarial data or research substantiating any differential treatment of people with disability.

Recommendation 64: The Federal Government should amend the Disability Discrimination Act to grant the power to the Australian Human Rights Commission or another regulator to periodically review whether industry practices under this exemption remain reasonable and evidence-based.

40.3. Acts done under statutory authority (section 47)

Section 47 is a broad exemption for acts done in direct compliance with other laws or lawful orders. It provides that if a person is obeying a court order or acting under a law or industrial instrument specified in the regulations, their conduct is not unlawful discrimination. While this seems reasonable in theory, in practice section 47 has sheltered some of the most entrenched and harmful discriminatory arrangements and is overdue for reform. Notably, the exemption explicitly covers compliance with industrial awards or

116 Disability Discrimination Act 1992 (Cth) s 46; Explanatory Memorandum, Disability Discrimination Bill 1992 (Cth) 17–18; Australian Government, Response to the Royal Commission (2024) (announcing prohibition on genetic discrimination in life insurance).

determinations relating to “capacity-based” wages for people with disability. This clause has effectively permitted the continuation of segregated employment settings (formerly known as sheltered workshops, now often termed Australian Disability Enterprises or “ADEs” or, more recently, “social enterprises”) where workers with disability are paid wages far below the standard minimum wage. For example, under the current Supported Employment Services Award, a worker with disability can be paid as little as $3.00 per hour based on a productivity assessment; a wage that traps employees in poverty and would be unthinkable for any other group of workers. Evidence before the DRC underscored the human impact, workers in ADEs described being paid $2.50 an hour for their labour.117 We contend this situation, which is effectively sanctioned by section 47, is fundamentally incompatible with modern disability rights. It represents a policy choice from a bygone era; one that views people with disability as inherently less productive or less valuable in the workforce.

In its Final Report, the DRC recommended a staged pathway to end segregated employment by 2034, including the elimination of sub-minimum wages for people with disability. Four Commissioners called on the Federal Government to develop a National Inclusive Employment Roadmap to transform or phase out ADEs and ensure all workers with disability receive at least the minimum wage by that date. This recommendation recognises that what section 47 has allowed to continue is, in effect, systemic and state-sanctioned discrimination in employment. Given the DRC’s findings, we recommend the section 47 exemption be significantly narrowed without delay. At minimum, a sunset clause should be added as Australia transitions away from ADEs. There is no justification for the DDA to keep enabling a dual wage system that treats workers with disability as second-class.

Recommendation 65: The Federal Government should amend the Disability Discrimination Act to insert into section 47 a sunset clause requiring a review of the provision within five years.

40.4. Infectious diseases (section 48)

117 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report (2023) vol 7, 464 .

Section 48 provides that it is not unlawful to discriminate against a person with disability if their disability is an infectious disease and the discriminatory act is reasonably necessary to protect public health. This exemption reflects the need to balance individual rights with community health and safety. The principle of a public health exemption remains sound; the COVID-19 pandemic underscored that some restrictions can be essential to prevent harm. However, the scope and application of section 48 should be examined given contemporary public health understanding and the lived experiences of people with disability during health crises. We recommend that any measure taken under this exemption must be evidence-based, proportionate, and non-discriminatory in its purpose; genuinely aimed at infection control, not stigma. In the past, people with HIV/AIDS, which is treated as a disability under the DDA, faced harsh exclusion under the guise of “public health” that in hindsight was driven more by fear than facts. We must ensure section 48 is not misused in such a manner.118 The DRC’s inquiry into the COVID-19 response found that people with disability, especially those in residential settings, often experienced excessive restrictions and neglect during the pandemic. For instance, some group home residents, and some older people with disability in residential aged care, were confined to their rooms for extended periods, ostensibly for infection control, without proper consideration of their rights and wellbeing.119 We concurrently recommend additional protections in relation to health and healthcare settings. Further information on this topic will be included in response to Question 51.

These lessons indicate that clearer guidelines are needed for section 48’s operation. We recommend that the exemption be narrowly construed: only actions strictly and reasonably necessary to protect the community should be covered. “Reasonably necessary” should entail a requirement to use the least restrictive measures and be based on current best practice medical evidence. Any long-term reliance on this exemption, such as routine blanket bans, should be subject to periodic review to ensure the public health rationale still exists. By tightening section 48 in this way, we can preserve its role in safeguarding health

118 Valdiserri RO. HIV/AIDS stigma: an impediment to public health. Am J Public Health. 2002 Mar;92(3):341-2. 119 Disability Discrimination Act 1992 (Cth) s 48; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report (2023) vol 6, 110–15 (findings on COVID-19 responses in disability residential facilities).

while preventing unjustified discrimination against people with disability who have, or are perceived to have, an infectious condition.

Recommendation 66: The Federal Government should amend the Disability Discrimination Act to require that any measures taken under section 48 are necessary and proportionate to protect the community, are the least restrictive measures possible, and are based on current best practice medical evidence.

40.5. Migration (section 52)

We support the removal of the migration exemption to the DDA, due to the discriminatory assumptions at the core of the outdated Migration Health Requirement (MHR) and the immigration process. Whilst the MHR states that it is in place to minimise public spending on health care and community services, this is based on the core assumption that people with disability will incur greater costs than they will make valuable contributions to society. The Australian Human Rights Commission’s response120 to the Department of Home Affairs’ ‘Review of the Migration Health Requirement Significant Cost Threshold’, in which they set out the breadth of contributions that migrants with disability might make to Australian society including professional qualifications, employment experience, cultural diversity. The Australian migration system is consistently reviewed and updated to center around encouraging skilled migrants to Australia, and eligible candidates applying for skilled migration visas will be moving to Australia to fulfill gaps in the labour market and support economic productivity. Applicants who fulfil the criteria for these visas will be, by the conditions of these visas, inherently contributing to the Australian economy and society. It is discriminatory to deny entry to these skilled individuals who are considered eligible to migrate to Australia, simply based on having chronic illness or disability. Furthermore, any individual whether an Australian citizen or an immigrant, may acquire disability at any point during their lifetime. Immigrants who have been granted the right to study, work and live in Australia and have since acquired a disability are made vulnerable to losing their

120 Australian Human Rights Commission (2023). Submission to the Department of Home Affairs: Review of the Migration Health Requirement Significant Cost Threshold, age 18. Department of Home Affairs. https://www.homeaffairs.gov.au/reports-and-pubs/PDFs/australias-migration-health-requirement-review-published-submissions/australian-human-rights-commission.pdf#page18

immigration status, if they are denied visa renewals or future visas based on the criteria of the MHR. This may result in people with newly acquired disability being made increasingly vulnerable to risk of family separation, significant costs of consulting with immigration lawyers or lodging visa applications, and losing access to their local community and support networks.

The Department of Home Affairs’ review into the MHR and Significant Cost Threshold (SCT)121 made several findings that suggested the MHR is outdated and no longer fit for purpose, including:

The acknowledgement that it prevents individuals with stable and well managed chronic health conditions from meeting the requirement.
The unfair inclusion of special education costs in the Significant Cost Threshold for applicants who are parents of children with disability, even though NDIS support is only available to permanent residents and Australian citizens.
Children born and ordinarily residing in Australia with a disability or health condition often do not meet the Migration Health Requirement for the grant of a permanent visa, despite children without disability likely obtaining citizenship on their 10th birthday, as prescribed in the Australian Citizenship Act 2007.
The language used in the immigration health assessment processes could be made more inclusive.

Furthermore, the DRC recommended that section 52 of the DDA should be reviewed on the grounds that it “authorises discrimination against people with disability seeking to enter Australia temporarily or permanently”.122 The CRPD has similarly called on Australia to remove the migration exemption in the DDA to ensure that people with disability do not face discrimination in any of the formalities and procedures relating to migration.123

121 Australian Government Department of Home Affairs (2024). Review of the Migration Health Requirement and Australia’s visa Significant Cost Threshold (SCT) report, page 10. Department of Home Affairs. https://www.homeaffairs.gov.au/reports-and-pubs/PDFs/migration-health-requirement-review-australias-visa-sct.pdf 122 Disability Royal Commission in Violence, Abuse, Neglect and Exploitation of People with Disability, Realising the human rights of people with disability: final report. Recommendation 4.31, page 32. Found at: https://disability.royalcommission.gov.au/system/files/2023-11/Final%20report%20-%20Volume%204%2C%20Realising%20the%20human%20rights%20of%20people%20with%20disability.pdf 123 UN Committee on the Rights of Persons with Disabilities, Concluding observations on the combined second and third periodic reports of Australia, CRPD/C/AUS/CO/2-3, 15 October 2019, S36(a).

In addition to the removal of the migration exemption to the DDA, we strongly urge that the Act should be amended to specifically extend to Australian immigration services. These new provisions should ensure that all immigration processes are fair and inclusive.

An example of how to implement these provisions is the United States’ Americans with Disabilities Act (ADA). The ADA extends to US immigration services and outlines the protection and reasonable modifications available to support people with disability immigrating to the US. These accommodations are in place to ensure fairness and inclusivity in the immigration process, and include:

The provision of sign language interpreters during appointments and interviews.
Extended time for immigration tests.
Migration services offices are required to be physically accessible to people with disabilities.
Communications - immigration forms and information are available in alternative formats such as Braille, large print or audio.
The provision of exemptions for individuals going through the naturalisation process. Some applicants may be exempt from the English and civics tests required for citizenship if they have a medical condition that impacts their ability to learn or demonstrate knowledge of these subjects.
The Oath of Allegiance requirement may be waived if an individual cannot understand or communicate an understanding of the oath due to a disability.

Furthermore, whilst prospective candidates for immigration to the US are required to undertake a health examination, this exam is primarily to assess risks to public health. The examination assesses risk of communicable diseases, vaccination records and medical history but physical or developmental disabilities are not grounds for medical inadmissibility, and the ADA protects immigrants with disabilities from discrimination during this process.

Recommendation 67: The Federal Government should remove the migration exemption (section 52) from the Disability Discrimination Act.

Recommendation 68: The Federal Government should extend the Disability Discrimination Act to specifically include Australian immigration services to ensure the process is fair and inclusive.

40.6. Combat duties and peacekeeping (section 53)

Section 53 grants the Australian Defence Force (“ADF”) an exemption for acts done in relation to the employment or engagement of people in combat, combat-related or peacekeeping roles, as well as the support roles that serve those operations. The ADF may lawfully discriminate against a person with disability in deciding who is fit for combat duties or similar hazardous service. We recognise the importance of combat readiness and troop safety. We do not suggest that personnel should be placed in roles where they or others would be at risk. We question, though, whether a blanket statutory exemption is the right approach in 2025. Other discrimination laws have evolved. For example, the Sex Discrimination Act once exempted women from combat roles entirely, but that provision was repealed when policy changed to assess individuals on merit. Similarly, we believe the ADF can uphold high standards without a categorical disability exemption, by relying on the general principle of inherent requirements of the job.

During a recruitment process, the ADF could still lawfully reject an applicant with disability if, after reasonable adjustments, that person cannot perform the essential requirements of a particular role. The DDA’s standard mechanisms, such as unjustifiable hardship and inherent requirements defenses, are designed to allow that kind of case-by-case judgement. Section 53, by contrast, may be sending an unintended signal that no person with disability is ever suited to any combat-related role. This is simply not true. People with disabilities serve with distinction in defence forces around the world when placed in appropriate positions. Examples include intelligence, cybersecurity, engineering, logistics and other support or technical roles that are crucial to modern military operations.124 The focus should be on ability and safe performance, not disability. We recommend the Federal Government amend section 53 to explicitly require an individualised assessment. For example, the exemption might apply only where a person’s disability prevents them from carrying out the inherent requirements of the intended combat or peacekeeping duty, even with reasonable adjustments.

124 Spectrum of Talent — Soldiers on the Autism Spectrum | Friends of the IDF.

This would align the military context with the rest of the DDA’s framework. It would also reflect the lived experience of many veterans and aspiring recruits with disability who seek to continue serving their country in whatever capacity they can. We note that inclusive employment is a priority across the public sector, and the ADF, as part of the Commonwealth, should not be exempt from this trend. Operational readiness must remain paramount and a more nuanced law could still protect that. In our view, narrowing section 53 would encourage the ADF to modernise its workforce practices and fully consider the contributions people with disability can make, rather than reaching for a blanket exclusion. The same arguments apply to peacekeeping by the Australian Federal Police.

Recommendation 69: The Federal Government should remove the exemption in section 53 of the Disability Discrimination Act with respect to people in combat, combat-related or peacekeeping roles, as well as the support roles that serve those operations.

40.7. Assistance animals (section 54A)

Section 54A outlines the conditions that a duty holder can request to be met when granting an assistance animal access or providing services to an assistance animal user. These provisions also provide clarity to people with disability who use assistance animals about the standards that their animal is required to meet. We support the retention of the assistance animals exemptionsbut encourage them to be updated in line with the proposed Assistance Animals National Principles.

Where duty holders have a right to request evidence that an animal is an assistance animal, we strongly support updating this exemption to specify that the evidence be a nationally consistent identity card or logo, as proposed in the national principles. This will simplify messaging for duty holders and ensure they comply with access requirements. Implementing the remaining proposed Assistance Animals National Principles, including implementing minimum training standards and a regular PAT, should instil confidence in assistance animal users, the public and businesses that the animal is appropriately trained to be working in public. This will reduce instances where an assistance animal user is requested to keep their animal under control.

Section 54A also outlines that it is not discriminatory to deny access to an assistance animal if it is suspected that they are carrying an infectious disease. Whilst we support the principle

of maintaining public health and safety, there is a possibility that this exemption can be exploited by duty holders as a way of denying access. We suggest that guidance be developed on how to identify which symptoms qualify as a significant risk, and how to handle these interactions with assistance animal users. Guidance should also include reporting mechanisms for duty holders where the condition of the animal raises welfare concerns.

Recommendation 70: The Federal Government should update section 54A of the Disability Discrimination Act to align it with the Assistance Animals National Principles once they come into effect. This would include reference to the nationally consistent identity card or logo as evidence that an animal is an assistance animal, and the introduction of a nationally accepted Public Access Test for assistance animals as evidence that the animal has been trained to the minimum training standards.

Recommendation 71: The Federal Government should provide guidance on section 54A of the Disability Discrimination Act, specifically on how duty holders should handle encounters with assistance animals that display symptoms of infectious disease.

41. Are there examples of legislative provisions in Commonwealth or state and territory anti-discrimination law that could be drawn on to modernise or strengthen the Disability Discrimination Act?

As highlighted by the DRC, “[w]hen the DDA was enacted in 1992, people with disability and their advocates held high expectations it would result in significant change”.125 This hope for change included that there would be “a fairer Australia where people with disabilities are regarded as equals, with the same rights as all other citizens, with recourse to systems that

125 Commonwealth, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023), p. 61.

redress any infringements of their rights”.126 It has since become clear that this has not occurred and the Act has “failed to intervene to provide equal opportunity”.127

The human rights of Australians with disability need to be better protected to ensure they live free from discrimination. Given Australia does not have a human rights act, coupled with the DDA being renowned for being a reactive piece of legislation, it is clear that the Act is well overdue for amendment to ensure it is modernised and strengthened and can “effectively contribute to an inclusive Australia”.128 The DDA needs to include more positive duties to ensure active steps are taken to prevent disability discrimination, and its reform and implementation need to be co-designed with the disability community.

There are legislative provisions in Commonwealth and state and territory anti-discrimination laws that could be emulated to modernise and strengthen the DDA. For instance, the Sex Discrimination Act 1984 (Cth) provides for a positive duty to eliminate unlawful sex discrimination. As recommended by the DRC, the DDA should be amended to introduce a positive duty to eliminate discrimination on the ground of disability.129 Positive duties to eliminate discrimination can also be found in the Discrimination Act 1991 (ACT)130 and the Anti-Discrimination Act 1992 (NT)131. While these are not disability-specific, they are good examples of proactive provisions designed to eliminate discrimination.

In 2025 the Disability Inclusion Act 2018 (SA) was updated to require South Australian government departments, councils and other statutory organisations to complete DAIPs with actions that respond to the needs of seven priority populations, namely:

Women with disability.
Children with disability.

126 Commonwealth, Parliamentary debates, House of Representatives, 26 May 1992, p 2755 (Brian Howe, Deputy Prime Minister and Minister for Health, Housing and Community Services), cited in Commonwealth, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023), p. 61. 127 Graeme Innes & Natalie Wade, (2023), ‘The case for change: Reviewing the Disability Discrimination Act’, Alternative Law Journal, 48(4), 240-244, p. 243. 128 Graeme Innes & Natalie Wade, (2023), ‘The case for change: Reviewing the Disability Discrimination Act’, Alternative Law Journal, 48(4), 240-244, p. 240. 129 Recommendation 4.27, Commonwealth, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023), p. 205. 130 Section 75, Positive duty to eliminate discrimination, sexual harassment and unlawful vilification. 131 Part 2A, Positive duty to eliminate discrimination, sexual harassment and victimisation.

Aboriginal and Torres Strait Islander people with disability.
People with disability from culturally and linguistically diverse backgrounds.
People with significant intellectual disability or who have high levels of vulnerability related to disability.*132
People with disability who identify as LGBTQIA+.
People with disability who live in regional communities.

The requirement to include actions in DAIPs that address the needs of these priority groups is a proactive provision which acknowledges the intersectional nature of disability. We suggest that the Federal Government monitor implementation of this legislation over time to better understand whether certain aspects might later be transferable to the DDA.

Recommendation 72: The Federal Government should review provisions that provide for a positive duty to eliminate discrimination in laws such as the Sex Discrimination Act 1984 (Cth), the Discrimination Act 1991 (ACT) and the Anti-Discrimination Act 1992 (NT). These provide good examples that could be mirrored in the Disability Discrimination Act.

Recommendation 73: The Federal Government should monitor implementation of the Disability Inclusion Act 2018 (SA) to consider how the specific needs of people with disability with intersecting identities could be met more effectively through the Disability Discrimination Act.

42. How can we ensure the Disability Discrimination Act remains fit-for-purpose into the future?

42.1. A broader approach to discrimination reform is needed

Ensuring the DDA remains fit for purpose is important but also complex. The objects of the DDA focus on eliminating discrimination, achieving equality before the law, and promoting people with disability’s fundamental human rights.133 Legislation is just a part of what is

132 *JFA Purple Orange’s preferred alternate wording for priority group 5: people with intellectual disability or people with disability who experience particularly acute barriers to access and inclusion. 133 Disability Discrimination Act 1991

needed to achieve these objects. There is also a need for educative efforts, leadership, community development, compliance, resourcing levels, political will and so much more.

As such, one of the most pivotal ways to seek to ensure that the DDA remains fit for purpose into the future, is by ensuring that it is concurrently part of a broader, coordinated approach towards achieving the ends being sought. It is not sufficient to simply name Australia’s Disability Strategy 2021-2031 as it currently stands as the approach. We can envisage that there will be many learnings from the current DDA review that will shed light on additional changes needed, beyond the boundaries of the DDA itself. As we have highlighted throughout this submission, there are also areas of co-designed research that need to occur to inform future change (for example, continuing research on improving the quality and effectiveness of DAPs and DAIPs, and on emerging areas where Disability Standards are needed). We agree with the former Anti-Discrimination Commissioner for Tasmania and Human Rights lawyer, Dr Robin Banks, who stated in her recent PhD thesis that it is important also to learn from “the psychology of stigma, prejudice and discrimination, to enhance discrimination law”.134 Taking account of psychology in terms of politics and organisational change management is also required. To ensure the DDA remains fit for purpose, we need to take a long-term approach to building society’s awareness of discrimination and the need for change.

It is important to achieve the right balance of incentives and enforcement, noting that this will evolve over time. New incentives are required to encourage duty holders to prevent and respond to discrimination. Some of these might include strengthening connections between the DDA and other legislation, for example, provisions of work health and safety legislation, or other discrimination acts at the federal level (e.g. to address intersectional barriers).

New enforcement mechanisms are also required to ensure that duty holders fulfill their duties to change as required by the DDA. Earlier in this submission, we have spoken to the need for an independent statutory authority with the responsibility to audit, and complete

134 Banks, Robin (2023). A rose is a rose is a rose : but not all discrimination smells the same. An exploration of the capacity of the psychology of stigma, prejudice and discrimination to enhance discrimination law. University of Tasmania. Thesis. https://doi.org/10.25959/25194221.v1. Subtitle.

enforcement tasks in relation to DDA responsibilities. We encourage also continued exploration of additional mechanisms to incentivise change.

Recommendation 74: The Federal Government should ensure that reform of the Disability Discrimination Act forms part of a broader, coordinated approach towards achieving the objects of the Act. This approach should connect with and build on existing strategies or plans, with the specific goal of eliminating discrimination against people with disability. Such an approach should be co-designed with people with disability, disability advocacy/representative organisations including those representing people facing intersectional barriers, and other stakeholders.

Recommendation 75: The Federal Government should strengthen and expand incentives and enforcement mechanisms to encourage duty holders to act on their responsibilities to prevent and respond to discrimination against people with disability.

Recommendation 76: The Federal Government should commit to funding ongoing research, for example via the National Disability Research Partnership, into ways to increase the effectiveness of efforts to prevent and eliminate discrimination.

42.2. Ongoing monitoring and governance mechanisms in relation to discrimination reform

There is a need for ongoing governance mechanisms involving people with disability, disability advocacy and representative bodies (including those representative of intersectional populations), and other stakeholders specifically focused on achieving the objects of the DDA. Their role should be both to provide oversight of the broader approach to achieving the objects of the DDA, but also to ensure that emerging issues, changes and new research on discrimination topics are being incorporated to the greatest degree possible.

A more formalised ongoing governance mechanism led by people with disability in partnership with federal, state and territory governments could also take an active role in partnering on different initiatives and approaches being tried across various states and territories aimed at addressing discrimination and implementing effective initiatives nationally.

Recommendation 77: The Federal Government should create ongoing governance mechanisms to oversee broader disability discrimination reform, involving people with disability, disability advocacy/representative organisations (including those representing people facing intersectional barriers) and other stakeholders.

Recommendation 78: The Federal Government should ensure that ongoing governance mechanisms receive and can act on new and emerging research and knowledge as to what will improve the effectiveness of discrimination reform efforts, and that they have the authority to recommend or implement change as required.

42.3. Legislative changes required of the Disability Discrimination Act

Many of the ways in which the DDA can be amended to meet its objects and remain fit for purpose into the future have been raised already throughout the issues paper, consultation process, or through this submission. These include:

Embedding modern understandings of disability and disability rights in the way the DDA is framed and adjusting definitions such that they are easier for everyone, including duty holders, to understand and act on.
Introducing proactive requirements for duty holders to prevent discrimination, including via the introduction of a positive duty.
Adding new Disability Standards associated with the DDA.

We recommend introducing five-yearly reviews of the DDA, to ensure that the legislation can evolve in line with emerging knowledge. We also recommend the judicious use of sunset clauses and try/test/learn approaches (particularly at the state/territory level) as required.

Recommendation 79: The Federal Government should embed a requirement for five-yearly reviews of the Disability Discrimination Act, to ensure it evolves in line with emerging knowledge, research and community needs.

42.4. Known areas where focus/consideration needed

Some areas that the DDA needs to consider to remain fit for purpose into the future are predictable. Already in our lifetimes, we are seeing the impacts of digitisation, of changes in the ways that information management, knowledge, and retention are occurring, and of the

way in which people and communities are relating to each other. We are learning more about social media (what helps and what harms), and about topics such as cyber bullying and online harassment. We are starting to see the impacts of artificial intelligence (AI), and the prejudice or bias that has been built into the ways that AI systems have learnt, been built and interact. We know that society will continue to be shaped by increasing globalisation, environmental change, the ongoing impacts of pandemics, wars and other less predictable factors.

Recommendation 80: The Federal Government should commit to funding ongoing research, co-designed with people with disability (e.g. via the National Disability Research Partnership), on new and emerging issues where action might be needed to prevent, eliminate and reduce the impacts of discrimination against people with disability.

43. Are there any other issues with the Disability Discrimination Act that should be considered as part of this review?

43.1. Health, mental health and the Disability Discrimination Act

Article 25 of the CRPD states that “people with disability have a right to the highest attainable level of health, without discrimination on the basis of disability”.135 It proceeds to outline equitable access to healthcare, equitable quality of healthcare, and a right to healthcare needed specifically due to disabilities.136 Yet people with disability across Australia experience and report significantly poorer health outcomes than the broader community.137

135 UN General Assembly (2007), United Nations Convention on the Rights of Persons with Disabilities: resolution / adopted by the General Assembly, A/RES/61/106, 24 January 2007. Australia ratified in 2008. Available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-persons-disabilities, accessed in September 2025. 136 UN General Assembly (2007), United Nations Convention on the Rights of Persons with Disabilities: resolution / adopted by the General Assembly, A/RES/61/106, 24 January 2007. Australia ratified in 2008. Available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-persons-disabilities, accessed in September 2025. 137 Australian Institute for Health and Welfare (2024), Web report: People with disability in Australia 2024 – Summary, available at: https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia/contents/summary#Health, accessed in October 2025.

In the DRC’s Final Report, the Commissioners recommended there be a right to equitable access to health services introduced as part of a new Disability Rights Act (Recommendation 4.9).138 The DRC made a series of other recommendations on health and related topics, many of which implicitly acknowledge, and seem designed to instigate action responding to, known existing issues of discrimination embedded within the health system (e.g. DRC Recommendation 6.32 Accessible Healthcare). Whilst many of the health focused recommendations have been accepted, or accepted in principle, and change is occurring, the magnitude of the change required is significant. Given this, and in line with writings by McInnes and Wade (2023)139, we consider that healthcare and hospitals should be a standalone area in which there is explicit protection against discrimination within the DDA. In our view, healthcare should be defined to explicitly include all forms of mental health care and mental health care settings including mental health rehabilitation, forensic mental health care settings and hospitals in addition to other forms of healthcare and settings.

Recommendation 81: The Federal Government should amend the Disability Discrimination Act to introduce healthcare and hospitals (including health services and hospitals delivering mental health care) as areas in which there is explicit protection against negative discrimination in the Act.

43.2. Improvements regarding the Disability Discrimination Act complaint processes

43.2.1. Continuing improvement of complaints processes

As we have stated elsewhere in this submission, there is a strong need to move the focus of the DDA from being primarily reactive (responding to complaints) towards proactive mechanisms to achieving the objects of the act. Even if a positive duty is introduced, however, we envisage complaints will continue to be key mechanisms to demand accountability and require change. In the 2022-2023 financial year, 46.4 per cent of

138 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Final Report, Volume 1, Executive Summary, Our view for an Inclusive Australia and Recommendations, Available online via: https://disability.royalcommission.gov.au/publications/final-report, accessed in September 2025. 139 McInnes, G., Wade, N., (2023), The case for change: Reviewing the Disability Discrimination Act, Alternative Law Journal 2023, Vol. 48 (4) 240-244.

complaints received by the AHRC were disability discrimination complaints, which makes this the predominant category of complaints received by the AHRC.140

Concerns regarding access, delays and a lack of timeliness in AHRC discrimination complaint processes are well known and ongoing, with the recent Auditor-General report on the Management of Complaints by the AHRC finding that timeliness of complaint processes has been declining.141 We would expect that delays and issues with timeliness would inevitably be a barrier/deterrent for some people in commencing or continuing with their complaints. We expect that some of the timeliness issues would also relate to the need for greater resourcing.

It is imperative also that there be continued work towards ensuring that individual and representative complaints processes are equitably available (especially to those experiencing the most or worst impacts of discrimination), and that there is equitable quality of outcomes for the diverse community of people with disability. Complaints processes need to be strengthened to better achieve individual outcomes, whilst also simultaneously finding ways to have systemic impact in reducing discrimination as per the objects of the DDA.

We welcomed the December 2022 changes to the Australian Human Rights Commission Act, including the amendment that broadened options for representative complaints, meaning they can now be pursued through the courts if unresolved at AHRC (section 46PO(1)).142 Additional work on improving equity, access and outcomes with complaint processes, however, continues to be necessary.

Recommendation 82: The Federal Government should strengthen both individual and representative complaints mechanisms and avenues to ensure equitable access to complaints processes and to improve the quality and fairness of complaint outcomes.

140 Australian Institute of Health and Welfare (2024), People with disability in Australia: web report: Disability discrimination section. Available at: https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia/contents/justice-and-safety/disability-discrimination?, accessed in October 2025. 141 Australian National Audit Office (2025), Management of Complaints by the Australian Human Rights Commission, Auditor General Report No. 24 2024-2025, Performance Audit. Available at: https://www.anao.gov.au/work/performance-audit/management-of-complaints-the-australian-human-rights-commission, accessed in October 2025. 142 Public Interest Advocacy Centre (2023), Information sheet: Recent changes to federal discrimination powers and complaints processes.

Recommendation 83: The Federal Government should ensure that the Australian Human Rights Commission and related service systems (including community discrimination law support, via both advocacy and legal services) are funded at adequate levels to match demand, so that discrimination complaints can be resolved in a timely manner.

43.2.2. Addressing cost barriers to complaints

We welcome the passing in 2024 of the Australian Human Rights Commission Amendment (Cost Protection) Bill 2023, arising from the Respect@Work review.143 This Bill introduced an “equal access” cost protection provision, which makes it more possible for people with disability to take disability discrimination complaints (or complaints on other attributes such as race or sex or in relation to sexual harassment) that are unresolved at the AHRC, to court, without fear that they will need to pay legal costs of the other party.144 This is a pivotal reform, and we look forward to its impacts.

At the same time, in situations where it becomes necessary to take a discrimination complaint to court, there continue to be financial barriers for many complainants. For example, unless the person/people are eligible for and can access free legal representation through Legal Aid or a community legal centre, or are able to access pro bono legal representation, they still need to bear their own legal costs.

Recommendation 84: The Federal Government should work with people with disability and advocacy/representative bodies to continue to better understand and address financial barriers to pursuing discrimination complaints.

43.2.3. Accessibility of information/communications about complaints processes

It is imperative information about disability discrimination complaints, pathways and processes is accessible for everyone. At present, whilst there is information about how to make disability discrimination complaints in a variety of community languages, and in

143 Justice and Equity Centre (2024), Media Release: New cost protection laws a game changer for access to justice 19 September 2024. Available at: New costs protection laws a game changer for access to justice - Justice and Equity Centre 144 Parliament of Australia (2024), Australian Human Rights Commission Amendment (Cost Protection) Bill 2023 website, available online at: https://www.aph.gov.au/Parliamentary Business/Bills LEGislation/Bills Search Results/Result?bId=r7110, accessed in September 2025.

Auslan, it would be beneficial to have additional information available (or more easily findable) in video/audio format explaining disability discrimination complaints processes and procedures. We highlight also the urgent need for additional information in formats such as Easy English/Easy Read, and for added support to be available for people to learn about complaints processes or to submit a complaint.

Given that we expect significant changes to the DDA as a result of this review (and that there are some existing gaps), we would encourage also a thorough review of the information available in partnership with people with disability and disability advocacy/representative organisations (especially those from intersectional backgrounds), to seek to ensure that the suite of information/communications available about discrimination and discrimination complaints meets the needs of everyone in the community.

Recommendation 85: The Federal Government should resource the Australian Human Rights Commission to work in partnership with a diverse group of people with disability, and advocacy/representative bodies and other stakeholders, to ensure that information and communications about complaints and complaints processes are accessible to the entire community. As part of this exercise, there should be particular attention paid to addressing information and communication barriers experienced by people facing complex communication barriers, as well as intersectional barriers.

43.2.4. Data and information to inform continual improvement

To inform the continual strengthening of complaint processes, we also recommend that the AHRC should be required to regularly publish more information about each of the complaints received, the demographics of those lodging (or not lodging) complaints and the experiences and outcomes of complaints processes.

Recommendation 86: The Federal Government should require the Australian Human Rights Commission to regularly publish additional de-identified information about complaints received and outcomes achieved. This should include complaints that are settled and those that cease/are terminated/withdrawn, as well as any patterns noticed or trends.

43.2.5. Connecting the positive duty, and complaints processes

If a positive duty were to be adopted, we would suggest that the complaints process should also be updated. Each time a complaint is made, we would suggest a step be introduced in the complaints process to consider the extent to which an organisation is also meeting their positive duty. The outcome of this consideration could also then be taken into account if any penalties or consequences are subsequently set. Incorporating positive duty responsibilities with complaint processes in this way, would provide an additional incentive for organisations to engage constructively with their positive duty responsibilities, whilst also providing additional mechanism for monitoring and supporting further good practice on how positive duties and complaint processes can strengthen each other.

There is a precedent for such a provision in the ACT which allows for “the ACT Human Rights Commission and the ACT Civil and Administrative Tribunal to consider whether a duty holder has met their positive duty to eliminate discrimination, sexual harassment and unlawful vilification when considering a discrimination complaint”.145

Recommendation 87: If a positive duty is adopted as part of the Disability Discrimination Act, the Federal Government should require discrimination complaints processes to be updated so that this positive duty is taken into consideration.

43.3. Justice, safety and the Disability Discrimination Act

In the current DDA review, the section of the issues paper regarding access to justice focuses on police and offensive behaviour or harassment. Both of those topics are vitally important. We suggest, however, that this review of the DDA should also focus on amending the DDA to cover negative disability discrimination experienced in “justice and safety systems” more explicitly.

We define “justice and safety systems” across both civil and criminal domains to include police, courts/tribunals, corrective services and prison officers, emergency service staff and first responders, prosecutors and their staff, relevant service sectors (for example DFSV, Child and Family Services, Mental Health and Disability services), relevant areas of

145 ACT Human Rights Commission (2024), Recent amendments to the Discrimination Act webpage, on the ACT Human Rights Commission website. Available at: https://www.hrc.act.gov.au/discrimination/amendments-to-the-discrimination-act-commencing-april-2024, accessed in October 2025.

government (e.g. Justice services, FDSV, Child Protection), also safeguarding and human rights services including: Public Trustees, Public Guardians, Public Advocates, Community Visitors, Official Visitors, Advocacy services, Legal services, services targeted to intersectional populations on justice topics etc.

The Safety, Rights and Justice Targeted Action Plan, which forms part of Australia’s Disability Strategy 2021-2031, notes that “despite having the same rights as other Australians, people with disability do not experience equitable outcomes in the areas of safety and justice”, and emphasised that this continues to be an area where people with disability want to see improvements in the ways that systems respond.146 Justice was also a key focus of the DRC, with a volume of their Final Report focused on criminal justice (volume 8) and civil justice topics arising in many if not most of the other volumes.147

Common justice and safety system issues experienced by people with disability can include:

People with disability not being sufficiently involved in co-design and delivery of policies, programs and laws relevant to them.
Information, communication and barriers being present when accessing justice systems and related supports.
Decision-making rights (including the right to make decisions with support if required) not being sufficiently recognised or respected.
Lack of training on disability awareness and rights in justice, safety and connected service systems with the consequent impacts on the experiences of people with disability.
Lack of access to needed adjustments, which could include disability advocacy, or supported decision making services.
Disability-related behaviours being mistaken for defiance.
People with cognitive disability not being seen as credible witnesses.
Lack of adjustments to processes being made to accommodate disability.

146 Commonwealth Government (2025), Safety, Rights and Justice Targeted Action Plan 2025-2027, part of Australia’s Disability Strategy 2021-2031. Available on the Disability Gateway website, at: https://www.disabilitygateway.gov.au/document/11476, accessed in October 2025. 147 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), Final Report, Available online via: https://disability.royalcommission.gov.au/publications/final-report, accessed in September 2025.

Barriers in access to help with emergency situations and services, including those that relate to addressing, preventing and responding to domestic, family, sexual and other forms of violence (as highlighted in the final report of the recent South Australian Royal Commission into Domestic, Family and Sexual Violence148, in addition to throughout DRC reports).

Arguably, many of the compounding issues that people with disability experience regarding equitable access and quality of outcomes via justice and safety systems could be linked at some level to discrimination-related barriers, whether systemic or individual.

We therefore recommend that there should be consideration of more explicitly including interactions with both civil and criminal justice and safety systems within the DDA.

The right of people with disability to make decisions that affect their own lives, with support if required, is critical to the enjoyment of all other human rights. This review is an important opportunity to amend the DDA to further recognise equal recognition before the law and to encourage action to prevent discrimination against people with disability in decision-making and to require justice and safety systems, employers, service providers and others to make adjustments to support people with disability to make decisions about their lives.

Recommendation 88: The Federal Government should amend the Disability Discrimination Act to introduce justice and safety services and systems as contexts in which there is explicit protection against negative discrimination.

Recommendation 89: The Federal Government should include a clause in the Disability Discrimination Act to prevent discrimination against people with disability in making decisions that affect their lives and providing for adjustments to support such decision-making if required.

43.4. Accommodation

According to CRPD Article 28, people with disability have the right both to adequate standard of living and to social protection without discrimination based on disability.149 The

148 Royal Commission into Domestic, Family and Sexual Violence (2025), Final Report: With Courage: South Australia’s vision beyond violence, available online at: https://www.royalcommissiondfsv.sa.gov.au/publications/With-Courage, accessed in October 2025. 149 UN General Assembly (2007), United Nations Convention on the Rights of Persons with Disabilities: resolution / adopted by the General Assembly, A/RES/61/106, 24 January 2007. Australia ratified in 2008.

current DDA provisions related to accommodation are framed primarily to cover discrimination by real estate agents or housing providers.

Earlier in this paper, we wrote of the profound harms that can occur for people with disability from harassment, hate or vilification. When people with disability are experiencing harm or are at increased risk of abuse related to disability, in or about their apartment, house or home environment, the impacts can be profound, affecting their sense of safety and security in the home environment. We are aware of many such situations, including those in which people felt compelled to leave, at times into homelessness.

Given this - additional provisions should be added to the DDA to make it illegal for anyone (including neighbours) to create a hostile environment where someone lives, by harassing or discriminating against them in relation to their disability, disability-related behaviours or assistive technology that relates to their health/disability. It should specifically be illegal to harass a person with disability with the aim of seeking to make them decide to move, or to seek to have people evicted due to factors explicitly linked with disability.

There are international precedents for such provisions - in the U.S.A., the Fair Housing Act prohibits disability harassment and the creation of a hostile environment. That legislation does not offer protection to people (with or without disability) who present a direct threat to the people or property of the other.150 We would caution careful drafting of any such provisions to seek to adequately balance rights, and to ensure that they are implemented in ways that are protective of the rights of people with disability.

Recommendation 90: The Federal Government should amend the Disability Discrimination Act to strengthen protections in the home environment, specifically to protect against disability-related harassment or abuse and the creation of a hostile environment by neighbours or others.

43.5. Aviation reform

Available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-persons-disabilities, accessed in September 2025. 150 Civil Rights Division | The Fair Housing Act

For many years, people with disability have been reporting barriers that impact equitable access to airline travel and highlighting the need for urgent reform under the DDA.151152 Issues have included: booking systems being inaccessible, being treated disrespectfully and unfairly during airport screening processes, refusing people access to their own wheelchairs to commute through the airport to the plane,153 refusing to take a person’s wheelchair with them on their flight, refusing access to assistance animals, being stranded without support in airport terminals, and being required to pay extra costs.154

We welcome the Australian Government’s 2024 Aviation White Paper Towards 2050 and the commitment to develop a new aviation-specific disability standard, as a schedule to the Disability Standards for Accessible Public Transport 2002, and as authorised under the DDA subsection 31(1).155 We welcome that there is a co-design process occurring to develop new standards on this topic, and the Federal Transport Minister Catherine King’s announcement that they are due to be finalised in 2026.156 We underscore the importance of achieving comprehensive aviation standards as part of DDA reform, and support calls from the Australian Federation of Disability Organisations (AFDO), the National Inclusive Travel Advocacy Network (NITAN), the Justice Equity Centre157 and others for active and

151 Innes, Wade (2023), The case for change: Reviewing the Disability Discrimination Act, Alternative Law Journal 2023, Vol. 48(4) 240-244, available at: https://doi.org/10.1177/1037969X231206831, accessed in August 2025. 152 Public Interest Advocacy Centre (2023), Submission to the Aviation Green Paper, December 11, 2023. Available at: https://jec.org.au/resources/submission-to-the-aviation-green-paper/, accessed in October 2023. 153 Justice and Equity Centre (2024), Improving air travel for people with disability webpage, on the Justice and Equity Centre website, available at: https://jec.org.au/impact/our-record/improving-air-travel-for-people-with-disability/, accessed in September 2025. 154 Young, E. and Campanella, N. (2025), People with disability still dealing with inaccessible air travel as aviation reforms drag on, ABC News online article, 26 August 2025, available at: https://www.abc.net.au/news/2025-08-26/people-with-disability-air-travel-aviation-standards-drag/105610372 155 Australian Government (2024), Aviation White Paper Towards 2050, Issued August 2024, Available at: https://www.infrastructure.gov.au/sites/default/files/documents/awp-aviation-white-paper.pdf, Accessed in September 2025. 156 Young, E. and Campanella, N. (2025), People with disability still dealing with inaccessible air travel as aviation reforms drag on, ABC News online article, 26 August 2025, available at: https://www.abc.net.au/news/2025-08-26/people-with-disability-air-travel-aviation-standards-drag/105610372 157 Justice and Equity Centre (2025), Submission: Aviation Customer Rights Charter – Consultation Paper, available online at: https://www.infrastructure.gov.au/sites/default/files/documents/acrc2025-submission-c44-justice-and-equity-centre redacted, accessed in September 2025.

independent oversight and regulation to also be funded.158 People with disability have a right to equitable access to and equitable experiences engaging with airlines and airports, and continued work is needed to ensure this.

Recommendation 91: The Federal Government should co-design a comprehensive aviation Disability Standard aligned with the Disability Discrimination Act. The Federal Government should implement this as a matter of priority and adequately fund independent oversight and regulation.

44. Conclusion

The Disability Discrimination Act was once a landmark in Australia’s human rights landscape but more than thirty years on, it no longer meets the expectations or lived realities of people with disability. The reforms we have proposed throughout this submission are designed to restore the DDA to that original purpose: to be a genuine instrument of equality and not just a reactive framework for individual complaints.

In every recommendation, the message is consistent: people with disability need a law that recognises rights proactively, prevents harm before it occurs, and provides effective remedies when discrimination happens. The DDA must embed positive duties and co-design to force systems to be accountable.

Modernising the DDA also means embedding contemporary human rights concepts like the social model of disability, intersectionality and the language and obligations of the UNCRPD. It means clear definitions, accessible language, and practical mechanisms that duty holders and people with disability can understand and act on. It means the Australian Human Rights Commission is equipped with the powers and resources to educate, guide, monitor and enforce compliance. It also means addressing discrimination in specific contexts such as digital environments, health and justice systems, and neighbourhood settings.

If implemented, the reforms we recommend would strengthen protections against discrimination and meaningfully increase inclusion in community life. They would lift the

158 Australian Federation of Disability Organisations (2023), Aviation Green Paper: Towards 2050: Submission by AFDO and NITAN, available at: https://www.afdo.org.au/wp-content/uploads/2024/01/202311-AFDO-NITAN-Joint-Submission-Aviation-Green-Paper-Final-November-002.pdf, accessed in September 2025.

burden of eliminating disability discrimination off the shoulders of people with disability, reinforce that this is everyone’s responsibility.

We are grateful for the opportunity to provide input into this review, and we would welcome the opportunity to discuss our position further. To organise a meeting, please contact redacted Interim CEO, at redacted, or redacted.