NDIA Accountability Project

Review of s52 exemption and impact on migrants with disability

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Migration
Institute
of Australia

14 November 2025

Disability Discrimination Act Review Team
Attorney Generals Department

E: DDAReview@ag.gov.au

To whom it may concern,

Re: Disability Discrimination Act 1992 Review

The Migration Institute of Australia (MIA) welcomes the opportunity to provide feedback to the Department’s Discussion Paper; Disability Discrimination Act 1992 Review.

The Migration Institute of Australia (MIA) is the leading national organisation representing registered migration agents and migration lawyers in Australia. Established in 1992, the MIA supports members to deliver professional excellence in immigration advice and advocacy, thereby enhancing the experiences and outcomes for migrants and contributing to a diverse and dynamic Australia.

The MIA supports a fair and non-discriminatory migration system in Australia for people with disability which complies more consistently with Australia’s obligations under relevant UN conventions, including relating to disability discrimination.

Please feel free to contact the MIA on redacted or redacted if further information is required in relation to this submission.

Yours sincerely

redacted

Peter van Vliet
Chief Executive Officer

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MIA SUBMISSION TO THE DISABILITY DISCRIMINATION ACT REVIEW

  1. The MIA welcomes the opportunity to contribute to the Australian Government’s review of the Disability Discrimination Act 1992 (Cth) initiated in response to the Disability Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Royal Commission).
  2. Specifically, the MIA is interested in the Royal Commission’s recommendation 4.31 relating to disability discrimination and migration law, as follows: i. “The Australian Government should initiate a review of the operation of ii. section 52 of the Disability Discrimination Act 1992 (Cth), insofar as it iii. authorises discrimination against people with disability seeking to enter iv. Australia temporarily or permanently. The review should consider changes v. to the legislation and migration practices to eliminate or minimise the vi. discrimination”.
  3. The MIA supports a fair and non-discriminatory migration system in Australia, including for people with disability, and a system which complies more consistently with Australia’s obligations under relevant UN conventions, including relating to disability discrimination.
  4. The MIA recognises that the Australian Government must operate an orderly migration system that balances human rights, economic and national interests, support for refugees and humanitarian entrants, and fundamental rights to family unity.
  5. The MIA acknowledges it is necessary to balance the interaction of disability discrimination and migration policies with public interest priorities relating to the accessibility of sometimes scarce and costly healthcare and community services for Australian residents, including migrants and their children living in Australia.
  6. However, discrimination against people with disability should be removed as far as is practically possible in this regard. At present, it could be argued that the current policy settings and regulations are weighted against migrants and refugees with disability.

Review of s52 exemption (Migration)

  1. We note that the review of the Disability Discrimination Act (DDA) consultation paper includes a section on permanent exemptions under the Act and the review seeks views “on whether the current exemptions are the minimum necessary to implement and maintain other government policies and law, or whether any unnecessary provisions could be removed”.

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  1. As the consultation paper states, the permanent exemptions to the Disability Discrimination Act 1992 (Cth), “balance the purpose of eliminating disability discrimination with other competing policy priorities”. However, the interpretation of this balancing act should not lead to weighting in favour of other policy priorities at the general expense of people with disability.
  2. The consultation paper has not provided an assessment of what it would mean in practice if the s52 exemption was removed or amended. In line with the intent of the Disability Royal Commission’s recommendation 4.31, MIA submits that a comprehensive evidence-based analysis is required. Without modelling the likely number of affected visa applicants, projected service demand, and economic and social impacts and contributions, the MIA suggests that it is difficult to evaluate whether the exemption remains necessary.
  3. In this respect, the Canadian example is helpful. Following a Parliamentary Inquiry and a two-year review and consultation process, in 2018 the Canadian Government announced changes to the medical-inadmissibility provision of the Immigration and Refugee Protection Act to reduce barries for immigrants with disabilities. Under these reforms, Canda tripled the cost-threshold for medical inadmissibility and removed certain service types from the definition of ‘social services’.
  4. The Canadian change reflected a shift to being more inclusive of people with disability as migrants. While the medical-inadmissibility criterion continues to protect Canadian public health and safety and protect excessive demand on publicly funded health and social services, the Canadian reforms demonstrate that greater inclusion is feasible and adjustments can accommodate differing support needs.
  5. The MIA recommends a comprehensive review and modelling of the operation of section 52 of the Disability Discrimination Act 1992 (Cth) be conducted which aims to minimise discrimination against people with disability wherever possible, and particularly for those who already have strong connections and ties to Australia.
  6. As a minimum the detailed review and analysis needs to give regard to several factors based on an estimate of migration applicants with disability, such as; the anticipated demand and cost impact on health, disability, housing and social and community services, the capability of relevant services in meeting the demand as well as the likely economic and social contributions of migrants with disability. Options for implementation, such as fully removing or modifying the exemption, trialling or phasing in a change and accompanying risk mitigation strategies should also be considered.
  7. In addition, reference should be given to both Australia’s obligations under the Convention on the Rights of Persons with Disabilities and relevant instruments protecting the rights of people with disability, and to the implementation of Canada’s reform to the medical-inadmissibility provision of the Immigration and Refugee Protection Act to reduce barriers for immigrants with disabilities. Without such analysis, we risk losing the opportunity to create a more inclusive and evidence informed migration policy that fairly treats people with disability.

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Recent reforms

  1. While the review of the Disability Discrimination Act 1992 (Cth) is facilitated by the Attorney General’s Department, we recognise that it is the Department of Home Affairs (Home Affairs) that administers Australia’s migration program and assesses visa applications, including health-related criteria which often relate to people with Disability under the Migration Act 1958 and the associated regulations.
  2. While not directly related to the review, it is worth noting that progress is being made to reform the migration health requirement and the significant cost threshold following Home Affairs’ Review into the Migration Health Requirement and Australia’s visa Significant Cost Threshold report (April 2024).
  3. We commend the Australian Government for actioning almost half of the recommended actions in the review report and note that the remainder are either in progress, require government consideration or are to be reviewed further by Home Affairs. We also note the review report’s assessment that the proposed actions outlined in the report, ‘implemented together or in part, would assist in minimising discrimination within the current functioning of the Migration Health Requirement’.
  4. However, Home Affairs should provide an update about the remaining recommendations from the review report, regarding the process and funding commitments to implement the actions along with the expected timeframe.
  5. We also commend the government for instigating a change in late 2024 to allow for special consideration for children born and ordinarily resident in Australia that do not meet the health requirement. Prior to the change, temporary migrants and their families who were already living in Australia and actively contributing to our society and economy, and who bore a child with a disability or health condition in Australia, could be barred from attaining permanent residence or further visas or could face a long, costly process in their attempt to settle permanently, or even temporarily, in Australia.

Further reform

Public Interest Criteria 4005 and 4007

  1. Regarding the more practical arrangements which often affect people with disability, the Government should remove the health (and disability) related and non-waivable Public Interest Criteria 4005 for all visa classes it applies to and replace this with the waivable Public Interest Criteria 4007.

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  1. The inflexibility of the non-waivable Public Interest Criteria 4005 acts as a deterrent for skilled migrants, who prefer destinations with a more accommodating migration health requirement. While most family reunion and humanitarian visas allow for the waiver of the migration health requirement, it is anomalous that most skilled migration visas still attract the non-waivable PIC 4005. Given this visa class is designed to generate an economic benefit to Australia and often provides a feeder pathway to permanent skilled migration, it is illogical to deny these applicants the ability to establish mitigating circumstances to justify waiving the health requirement.

Significant Cost Threshold Calculation

  1. The health requirement still contains various anomalies centred around the mechanism known as the Significant Cost Threshold (SCT) that creates substantial and sometimes insurmountable barriers for visa applicants living with health conditions or disabilities¹.
  2. Although the Significant Cost Threshold (SCT) was increased on 1 July 2024 and is currently $86,000, it does not compare favourably to New Zealand and Canada which both assess visa applicants against their migration health requirements for a maximum period of five years. In contrast, in Australia the assessment period extends up to ten years. Our longer assessment period particularly penalises those with health conditions or disabilities that are stable and well-managed.
  3. In addition, the Canadian inadmissibility threshold is set at three times the Canadian average annual cost for health and social services, compared to Australia’s SCT which approximates the annual health and welfare average.
  4. Costs associated with healthcare fluctuate significantly over time, and an annual review will ensure that the SCT remains relevant and accurate, aligning with current healthcare costs and economic conditions. Such regular updates also allow for adjustments based on welfare changes and advancements in medical treatments, ensuring that the SCT remains a fair measure in assessing the potential impact of a visa applicant’s health condition or disability on public resources.

Conclusion

  1. In summary the MIA recommends:
    • As a priority, a comprehensive review, including detailed modelling and impact-assessment, to consider removing or modifying the s52 exemption with the aim of minimising discrimination against people with disability wherever possible.
    • The Public Interest Criteria 4005 be replaced with the Public Interest Criteria 4007 for all provisional and permanent skilled visas classes.
    • Home Affairs update policy guidelines on the health waiver process to streamline processing and provide greater allowance of flexibility and concessions for visa applicants.
    • That the Federal Government consider a further increase to the Significant Cost Threshold (SCT) and limiting the assessment period to a maximum of five-years.
    • That the SCT be reviewed annually to maintain parity with the national cost.

¹ Discussion paper: Australia’s Significant Cost Threshold (SCT) Review 2023, p 6.

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  1. The MIA supports a fair and non-discriminatory migration system in Australia for people with disability which complies more consistently with Australia’s obligations under relevant UN conventions, including relating to disability discrimination.

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