NDIA Accountability Project

Strengthening protections against disability discrimination through a positive duty

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Review of the Disability Discrimination Act

Submission to Attorney-General’s Department, Australian Government
14 November 2025

Table of Contents

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Summary

  1. This submission to the Review of the Disability Discrimination Act 1992 (Cth) (the Review) addresses key questions raised by the Attorney-General’s Department Disability Discrimination Act 1992 Review Issues Paper (Issues Paper),¹ and makes recommendations to modernise and strengthen protections against discrimination for people with disability. It also considers and makes recommendations on how best to implement relevant recommendations made by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission).²
  2. A core recommendation made by this submission is that the Disability Discrimination Act 1992 (Cth) (DDA) should be amended to incorporate a positive duty for duty holders to take reasonable and proportionate steps to eliminate discrimination on the basis of disability. Positive duties are an emerging feature of modern discrimination law and represent and important shift towards a preventative approach to discrimination.
  3. The submission additionally includes commentary and recommendations to improve the DDA, including by modernising the definition of disability, including protections against intersectional discrimination, simplifying definitions of direct and indirect discrimination, improving access to employment and education, and introducing protections against offensive behaviour (vilification).
  4. Anti-discrimination and vilification legislation in Australia is complex and different approaches are taken across federal, state, and territory jurisdictions. This submission also makes recommendations to simplify and align relevant legislation. This will assist duty holders to understand and comply with their obligations; assist people with disability, their families, and advocates to understand what conduct is unlawful; and clarify what protection is available.

Introduction

  1. Thank you for the opportunity to provide a submission to the Review.
  2. The Queensland Human Rights Commission (the Commission) is an independent statutory body established under the Anti-Discrimination Act 1991 (Qld) (Anti-Discrimination Act). The Commission has functions under the Anti-Discrimination Act and the Human Rights Act 2019 (Qld) (Human Rights Act) to promote an understanding, acceptance, and public discussion of human rights and to make information about human rights available to the community.³

¹ Attorney-General’s Department, Disability Discrimination Act 1992 Review: Issues Paper (Attorney-General’s Department, Australian Government, 2025). ² Royal Commission into Aged Care Quality and Safety, (Final Report, 2021) vol 2:The current system. ³ Human Rights Act 2019 (Qld) s 61(d) and (e); Anti-Discrimination Act 1991 (Qld) s 235 (i).

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  1. The Commission’s submission to the Review considers how best to protect people with disability from discrimination and offensive behaviour (vilification) which limits their human rights (e.g., their right to enjoy their human rights without discrimination and their right to equal and effective protection against discrimination, section 15, Human Rights Act).
  2. The Commission’s submission draws from the Commission’s review of Queensland’s discrimination law: Building Belonging Review of Queensland’s Anti-Discrimination Act 1991 (Qld) (the Building Belonging Review).⁴
  3. The Building Belonging Review was conducted in 2021, following a referral under section of 235(k) of the Anti-Discrimination Act and section 61(b) of the Human Rights Act by the then Queensland Attorney-General. The terms of reference for the Building Belonging Review were broad and directed the Commission to undertake a comprehensive review of the Anti-Discrimination Act to consider whether there was a need for any reform to enhance and update the Act to best protect and promote equality, including in relations to persons with disability.
  4. To inform the Building Belonging Review, the Commission consulted widely through three key activities — consultations, submissions, and research. Across the course of the Building Belonging Review, the Commission’s review team conducted more than 120 stakeholder consultations, held 4 public consultations, and hosted a series of 6 roundtables. The Commission received 159 written submissions in response to a discussion paper, most of which are published on our website.⁵ We also conducted an online survey to which we received 1,109 responses and undertook extensive analysis of Australian and international discrimination and human rights law and academic literature.
  5. The Commission’s submission also draws from the Commission’s submissions to the Legal Affairs and Safety Committee Inquiry into serious vilification and hate crimes⁶ (the first Vilification Inquiry) and the Inquiry into the Criminal Code (Serious Vilification and Hate Crimes) and Other Legislation Amendment Bill 2023 (the second Vilification Inquiry).⁷
  6. The Commission’s submissions to the first and second Vilification Inquiries were informed by consultation with community representatives and other stakeholders about the effectiveness of laws addressing serious vilification. The submissions were additionally informed by the Cohesive Communities Coalition options paper Serious vilification and hate crime: The need for legislative law reform, which the Commission assisted to develop.⁸

⁴ Queensland Human Rights Commission, Building belonging: Review of Queensland’s Anti-Discrimination Act 1991 (July 2022) ‘Building Belonging Review’. ⁵ ‘Submissions’, Anti-Discrimination Act Review (Web Page) https://www.ghrc.qld.gov.au/about-us/reviews/ada/submissions. ⁶ Queensland Human Rights Commission, Submission to Legal Affairs and Safety Committee, Parliament of Queensland, Inquiry into serious vilification and hate crimes (12 July 2022) (‘the first Vilification Inquiry’) ⁷ Queensland Human Rights Commission, Submission to Legal Affairs and Safety Committee, Parliament of Queensland, Inquiry into Criminal Code (Serious Vilification and Hate Crimes) and Other Legislation Amendment Bill 2023 (4 May 2023) (‘the second Vilification Inquiry’). ⁸ Queensland Human Rights Commission, Annual Report 2024-25 (Report, 2025), 24.

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  1. The research, learnings, and consultation outcomes arising from the Building Belonging Review and the Vilification Inquiries are directly relevant to the questions raised in this Review and the Commission’s view is that these learnings are likely to be of assistance to the review team.

  2. Discrimination against and vilification of people with disability remains concerningly prevalent in Queensland. Discrimination on the ground of ‘impairment’ (disability) continues to be the most commonly accepted complaint at the Commission. In 2024-25 complaints related to impairment discrimination accounted for 63% of complaints accepted for conciliation under the Anti-Discrimination Act.⁹

  3. At a systemic level, discrimination and vilification limit opportunities for people with disability to develop their potential and to participate in and contribute to society. The loss of the unique contributions of people with disability comes at an enormous economic and social cost.

  4. The profound impact of discrimination, vilification, and other offensive behaviour on people with disability was extensively documented by the Disability Royal Commission.¹⁰ In addition to taking a psychological and emotional toll (potentially exacerbating existing health conditions) discrimination reinforces negative stereotypes, normalises prejudice, and can lead social isolation increasing the potential for further discrimination, violence and abuse to occur and go unchecked.¹¹

  5. While the impact of discrimination and vilification on the individual cannot be reduced to an economic value, the Disability Royal Commission estimated that the total annual economic cost associated with the systemic neglect of people with disability in Australia could be as high as $27.7 billion.¹²

  6. During a roundtable conducted with people with disability during the Building Belonging Review, a participant noted:

    You know, because it keeps happening time and time again, throughout your life has that like, make you feel over time, not just one occasion. But you know, that cumulative effect of it continually happening worn out, probably makes me feel a little bit like a second class citizen. They don’t seem to care that disabled people can’t get in there. So yeah, doesn’t feel good…¹³

⁹ Queensland Human Rights Commission, Annual Report 2024-25 (Report, 2025), 24. ¹⁰ See for example: Royal Commission into Aged Care Quality and Safety (Final Report, 2021) vol 1: Voices of people with disability. ¹¹ See for example: Royal Commission into Aged Care Quality and Safety (Final Report, 2021) Executive summary, 19-20. ¹² Royal Commission into Aged Care Quality and Safety (Final Report, 2021) vol 3: Nature and extent of violence, abuse, neglect and exploitation, 19. ¹³ People with disability roundtable, 3 February 2022.

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  1. The Commission supports amendments to strengthen and modernise the DDA to better prevent and respond to discrimination and vilification against people with disability, including by making amendments broadly in line with the recommendations made by the Disability Royal Commission.

Recommendations

  1. The Commission makes the following recommendations.

Part 1 - Understandings of disability and disability discrimination

  1. Regarding the definition of disability:
    • The term ‘disability’ should be retained (RECOMMENDATION 1).¹⁴
    • The definition of disability should be reviewed and any deficit-based language removed to the extent possible, without creating major inconsistencies with definitions in state and territory jurisdictions (RECOMMENDATION 2).¹⁵
    • Guidance material should be developed to address how the disability attribute applies to people with addiction, neurodiversity, mental health conditions and psychosocial disability, and people who are living with HIV or other health conditions (RECOMMENDATION 3).¹⁶
    • Education and awareness raising about the availability of guidance material should also be conducted (RECOMMENDATION 4).
  2. The DDA should expressly protect people from intersectional discrimination by prohibiting discrimination on the basis of a combination of attributes (RECCOMENDATION 5).
  3. Regarding the definition of direct discrimination:
    • The comparator test should be removed (RECOMMENDATION 6).¹⁷
    • The unfavourable treatment test should be retained (RECOMMENDATION 7).¹⁸
  4. The DDA should incorporate a shared burden of proof (RECOMMENDATION 8).¹⁹
  5. Regarding the definition of indirect discrimination:
    • The definition should be amended to incorporate a ‘disadvantage test’ (RECOMMENDATION 9).²⁰

¹⁴ This recommendation aligns with recommendation 21 made by the Building Belonging Review. ¹⁵ This recommendation aligns with recommendation 21 made by the Building Belonging Review as well as commentary at pages 392-409. ¹⁶ This recommendation aligns with recommendation 21 made by the Building Belonging Review. ¹⁷ This recommendation aligns with recommendation 3 made by the Building Belonging Review. ¹⁸ This recommendation aligns with recommendation 3 made by the Building Belonging Review. ¹⁹ This recommendation aligns with recommendation 13.1 made by the Building Belonging Review. ²⁰ This recommendation aligns with recommendation 3.2 made by the Building Belonging Review.

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  • The disadvantage test should be framed as disadvantaging a person with an attribute, as opposed to a group. (RECOMMENDATION 10).²¹
  • The definition should retain an objective ‘reasonableness’ element to ensure a fair and balanced approach (RECOMMENDATION 11)
  • The unjustifiable hardship exemption should be removed (RECOMMENDATION 12).²²
  • The test for indirect discrimination under the DDA should not include a requirement to show that a person is not able to comply with a term (RECOMMENDATION 14).²³
  1. Regarding beneficial interpretation:
    • The objects provision of the DDA should make explicit reference to the United Nations Convention on the Rights of Persons with Disabilities (UNCPRD) (RECOMMENDATION 15).²⁴
    • There should be an express requirement that the DDA be interpreted in a manner beneficial to people with disability (RECOMMENDATION 16).²⁵

Part 2 - Positive duty to eliminate discrimination

  1. Regarding a positive duty to eliminate discrimination:
    • The DDA should be amended to incorporate a positive duty to take steps to eliminate discrimination on the basis of disability. (RECOMMENDATION 17).²⁶
    • The duty should apply to anyone who has a legal obligation under the DDA. (RECOMMENDATION 18).²⁷
    • The positive duty should require that only ‘reasonable and proportionate’ steps be taken to eliminate discrimination. (RECOMMENDATION 19).²⁸
    • A non-exhaustive list of factors should be used to determine whether a duty holder has taken reasonable and/or proportionate steps (RECOMMENDATION 20).²⁹
    • This list should include ‘all other relevant facts and circumstances’ in line with the Sex Discrimination Act (RECOMMENDATION 21).³⁰

²¹ This recommendation aligns with recommendation 3.5 made by the Building Belonging Review. ²² This recommendation aligns with recommendation 5.1 made by the Building Belonging Review. ²³ This recommendation aligns with recommendation 3.5 made by the Building Belonging Review. ²⁴ This recommendation aligns with commentary at pages 118-120 of the Building Belonging Review. ²⁵ This recommendation aligns with recommendation 2.4 made by the Building Belonging Review. ²⁶ This recommendation aligns with recommendation 15 made by the Building Belonging Review. ²⁷ This recommendation aligns with recommendation 15 made by the Building Belonging Review. ²⁸ This recommendation aligns with recommendation 15 made by the Building Belonging Review. ²⁹ This recommendation aligns with recommendation 15 made by the Building Belonging Review. ³⁰ This recommendation aligns with recommendation 15 made by the Building Belonging Review.

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  • The DDA should create a legislative basis for the Australian Human Rights Commission (AHRC) to develop and publish guidelines in consultation with duty holders on the positive duty, provide advice in relation to disability action plans, and conduct reviews on request by duty holders (RECOMMENDATION 22).³¹
  • To enhance the effectiveness of AHRC’s regulation of the positive duty, the AHRC should be given complementary enforcement powers to, at the close of a systemic inquiry, enter into enforceable undertakings, impose compliance notices, and impose civil penalties as discussed in more detail below (RECOMMENDATION 23).³²

Part 3 - Encouraging inclusion of people with disability in employment, education and other areas of life

  1. Regarding a stand-alone duty to make reasonable adjustments:
    • The DDA be amended should include a stand-alone duty to make reasonable adjustments (RECCOMENDATION 24).³³
    • The term ‘reasonable’ (in reference to the term ‘reasonable adjustments’) should be retained (RECOMMENDATION 25).³⁴
    • The duty should incorporate a ‘reasonableness’ test (RECOMMENDATION 26).³⁵
    • ‘Reasonableness’ should be defined in the same manner as for indirect discrimination i.e., non-exhaustive factors for assessing whether an adjustment is reasonable should be adopted (RECOMMENDATION 27).³⁶
    • The definition of reasonableness should include a non-exhaustive list of factors to guide determinations of reasonableness, which incorporates some or all of the elements in the meaning of unjustifiable hardship, as appropriate. The definition should remain flexible and not overly prescriptive (RECOMMENDATION 28).³⁷
  2. Regarding inherent requirements for a role:
    • The Commission supports the recommendation made by the Productivity Commission in the 2004 Review of the Disability Discrimination Act 1992 that guidelines should be developed in relation to the factors that might be taken into account when identifying inherent requirements of a particular role³⁸ (RECOMMENDATION 29).
  3. Regarding education:

³¹ This recommendation aligns with recommendation 17-18 made by the Building Belonging Review. ³² This recommendation aligns with recommendation 17-18 made by the Building Belonging Review. ³³ This recommendation aligns with recommendation 5 made by the Building Belonging Review. ³⁴ This recommendation aligns with recommendation 5.1 made by the Building Belonging Review. ³⁵ This recommendation aligns with recommendation 5.1 made by the Building Belonging Review. ³⁶ This recommendation aligns with recommendation 5 made by the Building Belonging Review. ³⁷ This recommendation aligns with recommendation 3.6 made by the Building Belonging Review. ³⁸ Australian Government Productivity Commission, ‘Review of the Disability Discrimination Act 1992’, Productivity Commission Inquiry Report, Volume 1, 2004, 220.

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  • The Commission supports implementation of the recommendation made by the Disability Royal Commission for the DDA to additionally expressly provide that suspension can constitute discrimination (RECOMMENDATION 30).³⁹

Part 4 - Improving access to justice

  1. Regarding a new ‘offensive behaviour’ offence:
    • The Commission supports the recommendation made by the Disability Royal Commission to introduce an offensive behaviour provision to make unlawful an act that is reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person or group of people the act is done because of the disability of the other person (RECOMMENDATION 31).⁴⁰
    • The ‘offensive behaviour’ provision should apply to environments such as workplaces and places of education (RECOMMENDATION 32).⁴¹
    • The exceptions to the ‘offensive behaviour’ offence should closely resemble those in section 124A (2) of the Anti-Discrimination Act (RECOMMENDATION 33).⁴²
    • The proposed positive duty to eliminate discrimination should additionally require that duty holders take reasonable and proportionate measures to eliminate offensive behaviour (RECOMMENDATION 34).⁴³
    • Consideration should be given to amendments that would allow complaints about ‘offensive behaviour’ to be made by organisations on behalf of marginalised communities, and further, enabling the organisation to progress the complaint in court. (RECOMMENDATION 35).
  2. Regarding police actions:
    • Police actions should be captured by the DDA so that people with disability can raise concerns if they experience discrimination when interacting with police (RECOMMENDATION 36).
    • This should be achieved via the insertion of a new provision or provisions which capture policing activities (RECOMMENDATION 37).

Part 5 - Exemptions

  1. Regarding the exemptions for insurance and superannuation:

³⁹ Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 2023) vol 7 Part B ‘Inclusive education, employment and housing’ 170. ⁴⁰ This recommendation aligns with the Commission’s recommendations to the first Vilification Inquiry and the second Vilification Inquiry. ⁴¹ This recommendation aligns with the Commission’s recommendations to the first Vilification Inquiry and the second Vilification Inquiry. ⁴² This recommendation aligns with the Commission’s recommendations to the first Vilification Inquiry and the second Vilification Inquiry. ⁴³ This recommendation aligns with the Commission’s recommendations to the first Vilification Inquiry and the second Vilification Inquiry.

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  • The insurance and superannuation exemptions should be updated to include a non-exhaustive list of factors which provide guidance on whether it is reasonable to rely on actuarial or statistical data or other relevant factors. These factors may include whether the data source: i. is up to date ii. is relevant to the type and terms or conditions of the policy iii. indicates that the person poses an ‘unacceptable risk’ iv. is a reasonable source v. is from an Australian data source, or if from overseas, how it is applicable in the local context (RECOMMENDATION 38).
  • The provisions should also require that, on request, the data on which the service provider is relying is provided to a consumer within a reasonable timeframe (RECOMMENDATION 39).⁴⁴
  1. The review team should consider adopting the approach taken to special measures exemptions in section 12 of the Equal Opportunity Act 2010 (Vic). (RECOMMENDATION 40).⁴⁵

Part 6 - Modernising the DDA

  1. The review team should explore which legislative amendments and guidance materials are necessary to provide greater clarity and protections in relation to assistance animals (RECOMMENDATION 41).⁴⁶
  2. The AHRC should be legislatively empowered to provide advice on action plans, to set minimum requirements for action plans and to reject action plans that fail to meet those requirements (RECOMMENDATION 42).⁴⁷
  3. It should be made clear in guidance materials or via legislative amendments that the AHRC may use compliance powers available in relation to systemic inquiries, to enforce compliance with Disability Standards (RECOMMENDATION 43).⁴⁸

⁴⁴ This recommendation aligns with recommendation 41 made by the Building Belonging Review. ⁴⁵ This recommendation aligns with recommendation 4 made by the Building Belonging Review. ⁴⁶ This recommendation aligns with recommendation 21 made by the Building Belonging Review. ⁴⁷ This recommendation aligns with recommendation 17.2 made by the Building Belonging Review. ⁴⁸ This recommendation broadly aligns with recommendation 15 made by the Building Belonging Review.

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Part 1 - Understandings of disability and disability discrimination

The definition of disability needs to be clarified and modernised

Question 1: How should disability be defined in the Act?

  1. In Queensland, the Anti-Discrimination Act employs the term ‘impairment’ rather than ‘disability’. Relevant to this Review, a majority (15) submissions to the Building Belonging Review that addressed the relevant discussion question supported employing the term ‘disability’⁴⁹ in place of ‘impairment’ including because:

    • the social model of disability recognises ‘disability’ is the result of a physical, social, and attitudinal barriers placed in the way of people, whereas ‘impairment’ is grounded in the medical model and focuses on limitations or deficits;⁵⁰
    • there are negative and stigmatising connotations associated with the term ‘impairment’;⁵¹
    • ‘disability’ is now more commonly used;⁵²
    • ‘disability’ is consistent with terminology used in the United Nations Convention on the Rights of Persons with Disability (UNCRPD) and federal, and other anti-discrimination legislation.⁵³

  2. Specifically, the QDN submission to the Building Belonging review noted:

    Disability is generally considered a more appropriate term than impairment as there have been many negative connotations associated with the term impairment as it is usually used to describe a person’s lack of function and is

⁴⁹ Public Advocate (Queensland) submission; Christian Schools Australia submission; Dr Claire E Brolan submission; Australian Lawyers Alliance submission; Vision Australia submission; TASC National Limited submission; Queensland Catholic Education Commission submission; Aged and Disability Advocacy Australia, Name withheld (Sub.135) submission; Caxton Legal Centre submission; Queensland Advocacy Incorporated submission; Queensland Law Society submission; Department of Transport and Main Roads (Qld) submission; Department of Education (Qld) submission; Queenslanders with Disability Network submission. ⁵⁰ Australian Lawyers Alliance submission; Dr Claire E Brolan submission; Vision Australia submission; Queensland Advocacy Incorporated submission; Queenslanders with Disability Network submission; Public Advocate (Qld) submission. ⁵¹ Queenslanders with Disability Network submission; Queensland Law Society submission. ⁵² Queensland Catholic Education Commission submission; TASC National Limited submission. ⁵³ Public Advocate (Queensland) submission; Christian Schools Australia submission; Dr Claire E Brolan submission; Australian Lawyers Alliance submission; Vision Australia submission; Department of Transport and Main Roads (Qld) submission; Queensland Law Society submission.

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linked to arduous assessments an individual must go through to ‘prove’ their disability.⁵⁴

  1. These views were consistent with polling undertaken at a roundtable hosted with Queenslanders with Disability Network (QDN), where 69 per cent of attendees with disability preferred the term ‘disability,’ 12 per cent preferred ‘impairment’, and 19 per cent had no preference.⁵⁵
  2. The Commission recommends the term ‘disability’ be retained (RECOMMENDATION 1).⁵⁶
  3. For further discussion see pages 392-409 of the Building Belonging Review.

Question 2: What factors should be considered in developing a new definition?

Use of deficit-based language

  1. As part of consultation during the Building Belonging Review, we received a number of submissions that suggested:
    • The definition should employ language that is not inherently deficit based.⁵⁷
    • References to outdated language such as ‘malfunction,’ ‘malformation’ and ‘disfigurement’ should be removed.⁵⁸
  2. Deficit-based language focuses on what a person cannot do rather than what they can do. This language can contribute to feelings of exclusion amongst people with disability and lead to isolation. As discussed in the introduction to this submission, the isolation of people with disability comes at enormous economic and social cost to society.⁵⁹
  3. The Commission recommends that the definition of disability be reviewed and any deficit-based language removed to the extent that is possible without creating major inconsistencies with definitions in state and territory jurisdictions (RECOMMENDATION 2).⁶⁰

General need for clarity as to scope

  1. Submissions to the Building Belonging Review indicated that some confusion exists about the scope of ‘impairment’ and the need for public guidance and education to ensure community awareness and understanding of the protections.⁶¹

⁵⁴ Queenslanders with Disability Network submission, 4. ⁵⁵ Queenslanders with Disability Network, people with disability roundtable, 4 February 2022. ⁵⁶ This recommendation aligns with recommendation 21 made by the Building Belonging Review. ⁵⁷ Queensland Network of Alcohol and Other Drug Agencies Ltd submission, 3. ⁵⁸ Department of Transport and Main Roads submission, 2. ⁵⁹ Royal Commission into Aged Care Quality and Safety (Final Report, 2021) vol 3: Nature and extent of violence, abuse, neglect and exploitation, 19. ⁶⁰ This recommendation aligns with recommendation 21 made by the Building Belonging Review as well as commentary at pages 392-409. ⁶¹ Queensland Council of Unions submission; Independent Education Union - Queensland and Northern Territory Branch submission.

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  1. For example, in Queensland:
    • During a roundtable held with people with disability as part of the Building Belonging Review, some participants felt it was unclear whether the definition includes people with Attention Deficit Hyperactivity Disorder (ADHD) or people with Autism Spectrum Disorder (ASD).⁶²
    • The Commission received 11 submissions to the Building Belonging Review that supported clarity to confirm that protection extends to people experiencing addiction. Three submissions additionally indicated that express protection would remove any residual doubt and legitimise the legal position of substance abuse as a mental health disorder.⁶³
  2. The Commission recommends that guidance material be developed to address how the attribute applies to people with addiction, neurodiversity, mental health conditions and psychosocial disability, and people who are living with HIV or other health conditions (RECOMMENDATION 3).⁶⁴ Education and awareness raising about the availability of guidance material should also be undertaken (RECOMMENDATION 4).
  3. For further discussion see pages 392-409 of the Building Belonging Review. Issues relating to assistance animals are dealt with in Part 6 below.

The DDA should provide protection for intersectional discrimination

Question 3: Would the DDA be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes?

  1. During the Building Belonging Review and in the course of the Commission’s work, we have heard that people who experience discrimination on the basis of combined attributes (intersectional discrimination) are not adequately protected by anti-discrimination legislation. Failure to protect people with intersecting protected attributes places them at greater risk of experiencing discrimination and may be more vulnerable to the impacts of discrimination.

⁶² Disability Discrimination Act 1992 (Cth) s 4. ⁶³ Legal Aid Queensland submission; Queensland Positive People, HIV/AIDS Legal Centre, and National Association of People with HIV Australia submission, 12; Australian Discrimination Law Experts Group submission, 46. ⁶⁴ This recommendation aligns with recommendation 21 made by the Building Belonging Review.

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  1. We asked stakeholders how the Anti-Discrimination Act could best protect against intersectional discrimination. Of the submissions to the Building Belonging Review, significant support was expressed for recognition of discrimination based explicitly on ‘combined grounds’.⁶⁵ A large proportion of those submissions favoured legislative amendments which mirror the Canadian Human Rights Act (RSC, 1985, c. H-6), which states:

    For greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds. [emphasis added]⁶⁶

  2. The DDA provides that if an action is done for two or more reasons, and one of the reasons is the disability of the person (even if it is not the ‘dominant’ or ‘substantial’ reason), then the action is taken to be done because of disability for the purposes of the DDA.⁶⁷

  3. The ‘one or more’ or ‘two or more’ grounds approach has been interpreted broadly in international jurisdictions. For example, in South Africa the words ‘one or more grounds’⁶⁸ has been interpreted to include discrimination based on combined grounds.⁶⁹ However, there is no Australian case law to confirm that ‘one or more grounds’ will be interpreted as protecting against discrimination on the basis of combined grounds.

⁶⁵ Queensland Council of Social Service submission; Public Advocate (Qld) submission, Fibromyalgia ME/CFS Gold Coast Support Group Inc submission; PeakCare Queensland Inc submission; Queensland Network of Alcohol and Other Drugs Ltd submission; Life Without Barriers submission; Pride In Law submission; Dr Nicky Jones submission; Name withheld (Sub.069) submission; LGBTI Legal Service Inc submission; Vision Australia submission; Women’s Legal Service Qld submission, Australian Discrimination Law Experts Group submission; Tenants Queensland submission; Queensland Nurses and Midwives Union submission; Jenny King submission; Queensland Council of Unions submission; Ethnic Communities Council of Queensland submission; Maternity Choices Australia submission; Queensland Council for Civil Liberties submission; Community Legal Centers Queensland submission; Queensland Catholic Education Commission submission; Queensland Positive People submission, HIV/AIDS Legal Centre and National Association of People with HIV Australia submission; Equality Australia submission; Legal Aid Queensland submission; Aged and Disability Advocacy Australia submission, Respect Inc and DecrimQLD submission; Australian Industry Group submission; Caxton Legal Centre submission; Queensland Council for LGBTI Health submission; Queensland Advocacy Incorporated submission; Queensland Law Society submission; Youth Advocacy Centre Inc submission; Queensland Mental Health Commission submission; Multicultural Queensland Advisory Council submission; Department of Education (Qld) submission, Queenslanders with Disability Network submission; Name withheld (sub.026) submission; Australian Christian Lobby submission; Australian Christian Higher Education Alliance submission; Human Rights Law Alliance submission. ⁶⁶ Canadian Human Rights Act, RSC 1985, c H-6, pt I, 3.1. ⁶⁷ Disability Discrimination Act 1992 (Cth) s 10. ⁶⁸ Constitution of the Republic of South Africa 1996 (South Africa) ch 2 ‘Bill of Rights’, s 9.3. ⁶⁹ Mahlangu v Minister of Labour [2020] ZACC 24 (Constitutional Court).

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  1. Framing protection on the basis of ‘combined grounds’ would ensure the DDA adequately protects people experiencing intersectional discrimination. Providing protection against discrimination on ‘combined grounds’ would have the effect that a person alleging discrimination under the DDA could succeed where they have experienced direct or indirect discrimination and they have a disability, without requiring the court to consider whether the disability was one of the grounds for discrimination. This better reflects the reality of intersectional discrimination which typically cannot be neatly apportioned to a particular protected attribute and would help ensure people with disabilities who experience intersectional discrimination are not excluded from protection simply because the discrimination they experienced could be attributed to other attributes.

  2. One submitter to the Building Belonging Review said:

    So, you know, people do feel discriminated against, but they don’t really know why. Which part of me is being discriminated, for example, by the fact I’ve got a mental illness, or I’m Indigenous, or I’m gay, or I’m not allowed a voice. It’s that combination of things. And you have to get so specific and legal, that it’s a very big deterrent. One of the issues we’re grappling with is intersectionality, and how you do justice to someone who has been discriminated against.⁷⁰

  3. Another submitter noted:

    It seemed pointless coz it’s constant; also it’s often due to multiple factors and many reporting methods fail to account for this and want it to be blamed on one specific thing when it’s often hard to say - the worst discrimination I’ve faced is presumably on account of being a sex worker who uses drugs and is autistic and a woman and ‘acting odd’.⁷¹

  4. The Commission recommends the DDA expressly protects people from intersectional discrimination on the basis of a combination of attributes (RECCOMENDATION 5).

  5. For further discussion see pages 75-77 and 155-158 of the Building Belonging Review.

Question 4: Could any other changes be made to the DDA to recognise and provide protection for people with disability who have intersecting identities, or addressing compounding discrimination?

  1. Similar to the DDA, in Queensland the legal test for direct discrimination under the Anti-Discrimination Act requires the identification of a hypothetical comparator in the same or similar circumstances.⁷² This is known as the ‘comparator test’. The comparator test creates technical challenges when applied to a real-life situation, particularly for people with disability who have multiple, intersecting protected attributes. Constructing a hypothetical comparator for people with multiple attributes can be artificial, contrived, and distracts from the main purpose of the complaint – to address unfair treatment because of an attribute or attributes.

⁷⁰ Micah Projects (Karyn Walsh) consultation, 12 August 2021; Building Belonging Review, 76. ⁷¹ Micah Projects (Karyn Walsh) consultation, 12 August 2021; Building Belonging Review, 76. ⁷² Anti-Discrimination Act 1991 (Qld) s 10.

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60 Even without the added complexity of intersectional discrimination, the diverse and unique nature of disability can make constructing a real or hypothetical comparator in relation to person with disability can be an insurmountable obstacle. As a result, cases heard before tribunals and courts have often been unsuccessful.73 Some stakeholders who took part in the Building Belonging Review considered that this has significantly reduced the effectiveness of the Anti-Discrimination Act for people with disability. 61 While some submitters raised concerns about removing the comparator test,74 importantly removing the test does not exclude comparison, rather it removes it as an essential element, such that considerations about a comparator become part of the analysis only when it is a useful exercise. 62 On this basis, the Commission recommends that the comparator test be removed from the definition of direct discrimination (RECOMMENDATION 6).75 63 For further discussion, see pages 130 -139 of the Building Belonging Review.

Definitions of direct and indirect discrimination need to be simplified

Question 5: 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?

64 For the DDA to be effective, the definition of discrimination should be easy to understand and should avoid unnecessary technicalities that dilute the effectiveness of the law. 65 Our concerns relating to the comparator test are outlined above at Question 4. During the Building Belonging Review the Commission explored a number of options for replacing the comparator test. The unfavourable treatment test, which is currently employed by the DDA, was generally the preferred approach amongst stakeholders.76 The unfavourable treatment test provides that direct discrimination has occurred where a person treats or proposes to treat another person less favourably because of an attribute or attributes. 66 The reasons offered in support of the unfavourable treatment test include:

73 This is a line of reasoning based on the High Court case of Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62. But this case was distinguished in Queensland by Woodforth v State of Queensland [2018] 1 Qd R 289; [2017] QCA 100 because of the different provisions in the Queensland Act (including section 8) and the irrelevance of the reasoning in Purvis to subject matter unrelated to ‘behaviour’. 74 Legal practitioners’ roundtable, 10 February 2022. 75 This recommendation aligns with recommendation 3 made by the Building Belonging Review. 76 See for example: Caxton Legal Centre submission, 3; Public Advocate (Qld) submission, 3; Life without Barriers submission, 2; Multicultural Australia submission, 7.

  • An evaluation of the operation of this test in Victoria over 10 years found that a positive and purposeful change in the approach of parties, tribunals, and courts had resulted, and most stakeholders believed it to be simpler, cleaner, and more accessible, with fewer distractions from the main issues.77
  • It produces more accessible and less technical case law.78
  • It places the focus on the key issues – the unfair treatment and reasons for it.79
  • It improves the capacity of the law to respond to disadvantage.80
  • It reflects the approach of the International Covenant on Civil and Political Rights which frames discrimination in terms of impact on the affected group.81

67 The Commission recommends the unfavourable treatment test be retained in the definition of direct discrimination in the DDA (RECOMMENDATION 7).82 However, the comparator test element should be removed (see RECOMMENDATION 5).

Question 6: How should the burden of proof be addressed in the DDA?

68 Under the Anti-Discrimination Act and DDA the complainant has the responsibility of proving that the respondent contravened the Act (the ‘onus’ or ‘burden of proof’).83 69 Based on submissions to the Building Belonging Review, this can create problems because:

  • The current provisions, in effect, require the complainant to prove matters relating to the ‘state of mind of the respondent’, and often the complainant does not know whether ‘discriminatory rationales’ were part of the reason for the conduct.84
  • Evidence about the reason for the treatment often resides only with the respondent.85

77 Caxton Legal Centre submission, 3; Legal Aid Queensland submission, 8. See also Assoc Prof Dominique Allen, ‘An Evaluation of the Mechanisms designed to promote substantive equality in the Equal Opportunity Act 2010 (Vic)’ (2021) 44(2) Melbourne University Law Review 485. 78 Legal Aid Queensland submission, 8. 79 Assoc Prof Dominique Allen submission 2; Women’s Legal Service submission 3; Vision Australia submission 2. 80 Queensland Council for Civil Liberties submission, 2. 81 Caxton Legal Centre submission, 3. See also International Covenant on Civil and Political Rights art 2(2) and United Nations Human Rights Committee, General Comment No.18: Non-discrimination, 37th sess (10 November 1989) 7. 82 This recommendation aligns with recommendation 3 made by the Building Belonging Review. 83 Anti-Discrimination Act 1991 (Qld) s 204. 84 Equality Australia submission, 30. 85 Queensland Nurses and Midwives Union submission, 13; Dominique Allen submission, 2; Respect Inc. submission, 19-20; Basic Rights Queensland consultation, 15 September 2021.

  • Where the cause of discrimination is unconscious bias, the respondent themself may not have recognised or clearly articulated the reason for the treatment.86
  • People from disadvantaged or marginalised groups find proving discrimination especially difficult.87

70 The Commission heard consistently that disability complaints are hard to prove. At a roundtable, Vision Australia commented that people with blindness or low vision often feel they have been filtered out unfairly because of their disability, but do not hold the evidence about the basis for the decision.88 71 Two further submitters noted:

> A key barrier to lodging a complaint is the challenge of 'evidencing' unconscious bias, for example, in job applications, rental accommodation applications, etc.89

> Many [people with disability] face enormous difficulties in proving of ‘unconscious bias.’ For example, both employers and landlords unconsciously assume that [people with disability] are incapable and use other, more subtle tactics to deny [people with disability] equitable access and opportunities. Such unconscious bias results in both direct and indirect discrimination...90

72 The Commission heard that shifting the onus away from the complainant would acknowledge and address the power imbalance often inherent in discrimination cases.91 The Fair Work Act 20029 (Cth) (Fair Work Act) and a number of overseas jurisdictions, have implemented this approach.92

86 Queensland Advocacy Incorporated submission, 19. See also Assoc Prof Dominique Allen, ‘Reducing the Burden of Proving Discrimination in Australia’ [2009] Sydney Law Review 24; (2009) 31(4) Sydney Law Review 579, 1.A. 87 See for example: Public Advocate (Qld) submission 3; Queensland Nurses and Midwives Union submission, 13; Jenny King submission, 2. 88 Vision Australia submission, 4; Building Belonging Review, 295. 89 People with disability roundtable, 4 February 2022. 90 Fibromyalgia ME/CFS Gold Coast Support Group Inc submission, 14. This submission augmented the author’s feedback provided during the people with disability roundtable, 4 February 2022; Building Belonging Review, 80. 91 See for example: Women’s Legal Service submission, 4; Scarlett Alliance submission, 21. 92 Australian Discrimination Law Experts Group submission, 26.

73 While some submitters to the Building Belonging Review raised concerns about shifting the burden,93 the Disability Royal Commission found in practice that a court usually expects the respondent to explain why they made a decision, or took action that treated the complainant with disability less favourably.94 As such, shifting the burden would not place any significant additional burden on the respondent beyond what would normally be required to refute a discrimination complaint or claim. 74 As part of the Building Belonging Review, the Commission considered possible approaches including those taken by the Fair Work Act and the United Kingdom (UK) Equality Act 2010 (UK) (the UK Act). To commence an action under the Fair Work Act, an employee or prospective employee only needs to establish that adverse action was taken and that the employee had one of the relevant attributes.95 The process differs in the United Kingdom where the claimant must be able to make a prima facie case96 of direct or indirect discrimination before the burden of refuting the claim shifts to the defendant.97 75 The Commission prefers the UK Act approach because it resolves any residual concerns associated with the Fair Work Act approach that unmeritorious or vexatious claims could succeed simply because the defendant is unable to produce relevant evidence. 76 The Commission recommends the DDA introduce a shared burden of proof in line with the UK Act through which the burden of refuting the complaint shifts to the respondent once the complainant has established a prima facie case of discrimination. (RECOMMENDATION 8).98 77 For further discussion see pages 290-206 of the Building Belonging Review.

Question 7: 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?

78 The definition of indirect discrimination under the Anti-Discrimination Act and DDA are broadly similar. Both contain these elements:

  • a term or condition is imposed (or proposed to be imposed)
  • a person is not able to comply with the term or condition due to their attribute (disability)

93 Australian Industry Group submission, 3; Medical Insurance Group Australia submission, 3. 94 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 2023) vol 4 ‘Realising the human rights of people with disability’ 301. 95 Fair Work Act 2009 (Cth) s 361(1). 96 A prima facie case is one in which a party produces ‘enough evidence to allow the fact-trier [ie a judge or jury] to infer the fact at issue and rule in the party’s favour’. From Black’s Law Dictionary (abridged 7th ed, 2000) ‘prima facie case’ (def 4). 97 Barton v Investec Henderson Crosthwaite Securities Ltd [2003] EAT 18-03-0304; [2003] ICR 1205 [20]; Igen Ltd & Ors v Wong [2005] EWCA Civ 142; [2005] All ER 812 [76] Annex (9). 98 This recommendation aligns with recommendation 13.1 made by the Building Belonging Review.

  • the term is not reasonable.99

79 In both the Anti-Discrimination Act and DDA, there is an exception to indirect discrimination if avoiding the discrimination would impose an ‘unjustifiable hardship’ on the relevant duty holder.100 80 As part of the Building Belonging Review, the Commission received 36 submissions which broadly supported a shift away from the current approach to defining indirect discrimination.101 Only 3 submissions suggested the current provisions be preserved.102 81 The Commission heard the way indirect discrimination provisions are currently drafted is too complex and causes confusion for complaint parties,103 and this creates a barrier to justice.104 For example, the Queensland Mental Health Commission submission considered that the requirement to establish the evidence necessary to meet the current test was particularly challenging for people with a mental illness because ‘[m]ental illness occurs on a spectrum from mild to severe and can be episodic in nature. Mental ill-health affects individuals in different ways in different circumstances’.105 More specific concerns related to the definition of indirect discrimination are discussed below. 82 The most common alternative approach to defining indirect discrimination was the ‘disadvantage test’. This involves considering whether an unreasonable requirement, condition, or practice has, or is likely to have, the effect of disadvantaging the person.106 The disadvantage test does not require consideration of whether a person is able or is unable to comply. Instead, it focuses on the condition or requirement which has the effect of disadvantaging a person because of their protected attribute.

99 Anti-Discrimination Act 1991 (Qld) s 11; Disability Discrimination Act 1992 (Cth) s 6. 100 Anti-Discrimination Act 1991 (Qld) s 5; Disability Discrimination Act 1992 (Cth) s 11. 101 Name withheld (sub.026) submission; Public Advocate (Qld) submission; Medical Insurance Group Australia submission; Rainbow Families Queensland submission; PeakCare Queensland Inc submission; Christian Schools Australia submission; Life without Barriers submission; Associated Christian Schools submission; Name withheld (sub.060) submission; Dr Nicky Jones submission; Australian Lawyers Alliance submission; Vision Australia submission; Human Rights Law Alliance submission; Australian Discrimination Law Experts Group submission; Suncoast Community Legal Centre submission; Multicultural Australia submission; Queensland Nurses and Midwives Union submission; Jenny King submission; Queensland Council of Unions submission; Rita Jabri Markwell submission; Maternity Choices Australia submission; Queensland Council for Civil Liberties submission; Queensland Catholic Education Commission submission; Equality Australia submission; Legal Aid Queensland submission; Aged and Disability Advocacy Australia submission; Respect Inc and DecrimQLD submission; Name withheld (sub.135) submission; Australian Industry Group submission; Caxton Legal Centre submission; Queensland Law Society submission; Youth Advocacy Centre Inc submission; Queensland Mental Health Commission submission; Australian Association of Christian Schools submission; Department of Transport and Main Roads (Qld) submission; Queensland Civil and Administrative Tribunal submission. 102 Australian Industry Group submission; Australian Association of Christian Schools submission; Medical Insurance Group Australia submission. 103 Queensland Law Society submission, 3; Australian Lawyers Alliance submission, 7. 104 Legal Aid Queensland submission, 10. 105 Queensland Mental Health Commission submission, 3. 106 In Victoria, Tasmania, the Australian Capital Territory, and under the federal Age Discrimination Act 2004 (Cth) s 15 and the Sex Discrimination Act 1984 (Cth) s 7B.

83 The Commission recommends adoption of a disadvantage test for the definition of indirect discrimination in the DDA For example, indirect discrimination occurs where an unreasonable requirement, condition, or practice has, or is likely to have the effect of disadvantaging the person. (RECOMMENDATION 9).107 84 In the ACT, the Discrimination Act 1991 (ACT) only requires the disadvantage to be in relation to the specific person with the attribute/s (ACT test) rather than ‘people with the attribute’.108 The latter requires proof that the whole attribute group is affected, which introduces an additional layer of complexity about how an attribute group as a whole experiences disadvantage.109 For example, not everyone with a disability (even people with the same condition) has the same experience of disadvantage or requires the same adjustments to meet their needs. 85 The Commission recommends the ACT test for indirect discrimination which frames the disadvantage test around the person with the attribute be adopted, rather than the whole group. Adopting the ACT approach will also improve consistency between the DDA and federal sex and age discrimination laws (RECOMMENDATION 10).110 86 For further discussion see pages 140-150 of the Building Belonging Review.

Question 8: How should the reasonableness element in the definition of indirect discrimination be dealt with?

87 During the Building Belonging Review, some stakeholders maintained that retaining the ‘reasonableness’ of the imposed term in the test for indirect discrimination is vital.111 The Commission agrees that the definition of indirect discrimination, including in the context of the DDA, must retain an objective reasonableness element to ensure a fair and balanced approach (RECOMMENDATION 11).112 88 However, the Commission is of the view that having both the reasonableness test in the definition and the ‘unjustifiable hardship’ exemption is duplicative and creates confusion for complainants. An assessment of reasonableness of a term or condition often involves consideration of the same or similar factors to those considered when determining whether a term or condition would impose an unjustifiable hardship. This serves to create ‘layers of defences’.113

107 This recommendation aligns with recommendation 3.2 made by the Building Belonging Review. 108 Discrimination Act 1991 (ACT) s 8. 109 See for example: Legal Aid Queensland, submission, 10; Caxton Legal Centre, submission, 4; Equality Australia submission, 10-11. 110 This recommendation aligns with recommendation 3.5 made by the Building Belonging Review. 111 See for example: Associated Christian Schools submission 2; Legal practitioners’ roundtable, 10 February 2022. 112 This recommendation aligns with recommendation 3.5 made by the Building Belonging Review. 113 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 2023) vol 4 ‘Realising the human rights of people with disability’ 304.

89 For this reason the Commission recommends that the unjustifiable hardship exemption be removed from the DDA (RECOMMENDATION 12).114 The definition of reasonableness for the purpose of the definition of indirect discrimination should amended to include a non-exhaustive list of factors to guide determinations of reasonableness, which incorporates some or all of the elements in the meaning of unjustifiable hardship as appropriate. The definition should remain flexible and not overly prescriptive (RECOMMENDATION 13).115 90 In line with the Commission’s recommendation above (see RECOMMENDATION 7) that the DDA be amended to introduce a shared burden of proof in line with the UK Act,116 after a complainant establishes a prima facie case of discrimination, the burden of refuting the claim, including by demonstrating reasonableness, would shift to the defendant. 91 For further discussion see pages 148-150 of the Building Belonging Review.

Question 9: 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?

92 During the Building Belonging Review, the Commission heard that when the words ‘is not able to comply’ are interpreted literally, this can be problematic when interpreted literally. 93 The Commission recommends that the test for indirect discrimination under the DDA not include a requirement to show that a person is not able to comply with a term, thereby eliminating the problem of literal interpretation (RECOMMENDATION 14).117 94 For further discussion see pages 142-144 of the Building Belonging Review.

114 This recommendation aligns with recommendation 5.1 made by the Building Belonging Review. 115 This recommendation aligns with recommendation 3.6 made by the Building Belonging Review. 116 A prima facie case is one in which a party produces ‘enough evidence to allow the fact-trier [ie a judge or jury] to infer the fact at issue and rule in the party’s favour’. From Black’s Law Dictionary (abridged 7th ed, 2000) ‘prima facie case’ (def 4). 117 This recommendation aligns with recommendation 3.5 made by the Building Belonging Review.

The DDA should embed the Convention on the Rights of Persons with Disabilities

Question 10: Should the UNCRPD be included in the objects provision of the DDA?

95 While Australian courts can already consider international conventions and treaties that Australia has ratified when interpreting legislation,118 there remains ambiguity about the extent to which the UNCRPD can be used to support interpretation of the DDA, particularly noting the DDA was commenced prior to Australia ratifying the UNCRPD.119 96 Additionally, courts are not the only stakeholder group charged with interpreting the DDA. Decision-makers including public servants and service providers are regularly required to interpret and apply the DDA. These groups may not have any knowledge of the principles of statutory interpretation or experience with interpreting or applying legislation. Further, very few instances in which the DDA is incorrectly interpreted and applied will be corrected by a tribunal or court. In the Commission’s view, an explicit reference to the UNCRPD in the objects provision of the DDA may assist a broad range of stakeholders to properly interpret and apply the DDA. The Commission recommends the objects provision of the DDA explicitly reference the UNCRPD (RECOMMENDATION 15).120 97 For further discussion see pages 118-120 of the Building Belonging Review.

Question 11: Should the DDA be expressly required to be interpreted in a way that is beneficial to people with disability, in line with human rights treaties?

98 While the principle of beneficial interpretation is well established in common law,121 expressly obliging an interpretation of the DDA favourable to people for whom the Act is intended to benefit is consistent with the objects of the Act and would remove any ambiguity. 99 The DDA should expressly require that it be interpreted in a manner beneficial to people with disability to give effect to its statutory purpose and in line with Australia’s international human rights obligations. (RECOMMENDATION 16)122 100 For further discussion see pages 118-120 of the Building Belonging Review.

118 See for example Watts v Australian Postal Corporation (2014) 222 FCR 220 at [20]; Acts Interpretation Act 1901 (Cth) s 15AB(2)(d). 119 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, [entered into force 3 May 2008] (Australia ratified 16 August 2008). 120 This recommendation aligns with commentary at pages 118-120 of the Building Belonging Review. 121 AB v Western Australia [2011] HCA 42, [24]. 122 This recommendation aligns with recommendation 2.4 made by the Building Belonging Review.

Part 2 - Positive duty to eliminate discrimination

The DDA should incorporate a positive duty to eliminate discrimination

101 The adoption of a positive duty to take reasonable steps to eliminate discrimination and other prohibited conduct was a core recommendation made by the Building Belonging Review.123 This recommendation was made in light of the consistent theme that emerged throughout the Building Belonging Review – that anti-discrimination legislation lacks a preventative focus.124 102 As with the DDA, the primary way the Anti-Discrimination Act is enforced is through resolving individual complaints about conduct that has already occurred. This creates a reactive system that places the burden on people who have experienced discrimination. 103 Many submissions and consultations made clear there are significant barriers to making a complaint. A participant in a roundtable conducted during the Building Belonging Review noted:

> I just have to deal. And I feel uncomfortable with the, with the complaint procedure. I just, I'm not one to, to put in complaints. Maybe I need to change that about myself... Or maybe the complaint procedures need to [change].125

104 Some people may not realise they are experiencing unlawful treatment because the behaviour happens so regularly it has been normalised. If a person does recognise the treatment as discriminatory, they may not be aware that the law protects them. 105 People can also fear negative consequences of making a complaint or may find it hard to trust in government systems because of past treatment. Power differentials that contribute to discrimination and sexual harassment occurring in the first place can also operate to prevent people from reporting it. Another participant in the roundtable noted:

> People with disabilities, they are so scared of making any form of complaint. Because they're afraid they are going to lose the services… And they're just really afraid in general.126

123 Queensland Human Rights Commission, Building belonging: Review of Queensland’s Anti-Discrimination Act 1991 (Report, July 2022) 37. 124 Queensland Human Rights Commission, Building belonging: Review of Queensland’s Anti-Discrimination Act 1991 (Report, July 2022) 17, 24-25, 90-94, and 321-386. 125 People with disability roundtable, 4 February 2022; Building Belonging Review, 331. 126 People with disability roundtable, 4 February 2022; Building Belonging review, 101.

106 Further, the complaints system is not well suited to addressing ‘small’ acts of discrimination, which by themselves might not seem worth the effort of making a complaint, but cumulatively over time compound to significantly affect an individual’s health and wellbeing. 107 Even if a person decides to make a complaint, the process can be long and complex. Often people feel that the outcomes don’t justify the involvement. For people facing challenges in other areas of their lives, immediate priorities like food and housing insecurity mean that engaging with the process is not an option. While complaints may be commenced on behalf of a group of people (a class action) or by a trade union,127 a positive duty combined with appropriate enforcement powers may be able to provide a more constructive way to address systemic discrimination than legal proceedings. 108 Positive duties are an emerging feature of discrimination and sexual harassment laws. For example, in 2022 the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) was amended to include a positive duty to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.128 Many specialists consider that a positive duty is the next phase of enforcement. 129 109 Submissions and consultations revealed four key reasons why a positive duty would assist complainants:

  • Prevention – A positive duty seeks to stop discrimination before it happens, rather than simply responding to conduct that has already happened.
  • Education and awareness – The steps required for organisations to meet their obligations promotes a better understanding of the causes and impacts of discrimination and their obligations under anti-discrimination legislation.
  • Shared responsibility – Requiring organisations to take steps to prevent discrimination shares the responsibility for enforcement with duty holders rather than burdening people who anti-discrimination law is designed to protect.
  • Systemic focus – The combined impact of prevention, education, and shared responsibility is more likely to be successful in achieving systemic change.

110 The Commission recommends the DDA be amended to incorporate a positive duty to take steps to eliminate discrimination on the basis of disability. (RECOMMENDATION 17)130

127 Australian Human Rights Commission Act 1986 (Cth) s 46P(2). 128 Anti-Discrimination and Human Rights Legislation Amendment (Respect At Work) Act 2022 schedule 2. 129 See for example: Allen, Dominique, ‘Strategic enforcement of anti-discrimination law: A new role for Australia’s equality commissions’ (2011), Monash University Law Review, 1-26; Allen, Dominique, ‘Barking and Biting: The equal opportunity commission as an enforcement agency’ (2016) Federal Law Review, 311-335; MacDermott, Therese, ‘The collective dimension of federal anti-discrimination proceedings in Australia: Shifting the burden from individual litigants’ (2018) International Journal of Discrimination and the Law, 22-39. 130 This recommendation aligns with recommendation 15 made by the Building Belonging Review.

111 For further discussion see pages 17, 24-25, 90-94, and 321-386 of the Building Belonging Review.

Question 12: If there was a positive duty in the Disability Discrimination Act, who should it apply to?

112 The Commission recommends the scope of the positive duty be guided by the objectives that the positive duty seeks to achieve. These objectives could include prevention, educating organisations, sharing responsibility for enforcement with duty-holders, and providing greater protection for people who experience discrimination. 113 As part of the Building Belonging Review, we asked stakeholders to tell us if they thought a positive duty should apply to all duty holders in all areas of activity in which discrimination is prohibited (e.g., work, education).131 Of the submissions that addressed this point, most said that a positive duty should apply to anyone who has an obligation under the Act.132 Applying the duty to all stakeholders is also consistent with recommendations made by a series of reviews of anti-discrimination legislation in Australia.133 114 Ultimately, in the Queensland context, the Commission was unable to identify any rational justification for limiting the application of the positive duty to some duty holders but not others. Application of the duty across all duty holders also supports the objects (and potentially the amended objects) of the DDA to prevent discrimination. It will also minimise complexity, ensuring there is no confusion as to which groups have obligations under the DDA. 115 During the Building Belonging Review a number of stakeholders raised concerns about an increased regulatory burden associated with a positive duty. The Commission is cognisant that a complex regulatory environment can create specific challenges for organisations, particularly those with limited resources, and some sectors already experience more regulation than others. In weighing this concern against the potential benefits, the Commission considered concerns about regulatory burden and inequitable resources can be appropriately managed via the drafting of the duty (e.g., requiring only reasonable and proportionate steps be taken to eliminate discrimination). 116 The Commission recommends the duty should apply to anyone who has a legal obligation under the DDA (RECOMMENDATION 18).134

131 In Queensland, the Anti-Discrimination Act prohibits discrimination in particular areas of activity including work, education, goods and services, accommodation, disposition of land, club membership and affairs, superannuation, insurance, administration of state laws and programs, and local government. 132 Assoc Prof Dominique Allen submission; Maurice Blackburn Lawyers submission; TASC National Limited submission; Jenny King submission; Australian Discrimination Law Experts Group submission; Equality Australia submission; Legal Aid Queensland submission. 133 Julian Gardner, An Equality Act for a Fairer Victoria (Equal Opportunity Review Final Report, June 2008) 40; ACT Law Reform Advisory Council, Review of the Anti-Discrimination Act 1991 (ACT) (Final Report, 2015), 48-49; 134 This recommendation aligns with recommendation 15 made by the Building Belonging Review.

117 The Commission also recommends that the positive duty require only that ‘reasonable and proportionate’ steps be taken to eliminate discrimination (RECOMMENDATION 19).135 A non-exhaustive list of factors should be used to determine whether a duty holder has taken reasonable and/or proportionate steps (RECOMMENDATION 20).136 This list should include ‘all other relevant facts and circumstances’ in line with the Sex Discrimination Act (RECOMMENDATION 21). Together, these amendments would allow the duty to be scaled depending on the size and structure of an organisation and any industry-specific considerations including risk profiles.137 118 Regulatory burden can also be minimised via an appropriate approach to regulation and enforcement. The Commission recommends the aim of regulation in relation to the positive duty should be to support compliance through education and cooperation first, with complementary enforcement mechanisms to address serious or systemic non-compliance. During the Building Belonging Review, some stakeholders indicated an eagerness for education and cooperative support:

> Our members have asked us to provide them with more and more education about how they could do that better. So any legislative or or structural support or pressure to expedite that would be great.138

119 The Commission recommends the DDA should create a legislative basis for the AHRC to develop and publish guidelines in consultation with duty holders on the positive duty, provide advice in relation to disability action plans (see Question 41 & 44 below), and conduct reviews on request by duty holders (RECOMMENDATION 22).139 The enforcement of the positive duty should also be supported by the AHRC’s existing powers to conduct inquiries into systemic unlawful discrimination.140 120 Recent inquiries and reviews have recommended that regulatory bodies should be able to require and enforce compliance, including by:

  • entering into an agreement with a duty holder about action required to comply with the Act
  • entering into an enforceable undertaking with the duty holder
  • issuing a compliance notice to the duty holder.141

135 This recommendation aligns with recommendation 15 made by the Building Belonging Review. 136 This recommendation aligns with recommendation 15 made by the Building Belonging Review. 137 This recommendation aligns with recommendation 15 made by the Building Belonging Review. 138 Small business roundtable, 7 March 2022; Building Belonging Review, 184. 139 This recommendation aligns with recommendation 17-18 made by the Building Belonging Review. 140 Australian Human Rights Commission Act 1986 (Cth) s35L. 141 See for example: Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, Report (2020) 44; Australian Human Rights Commission, Free & Equal: A Reform Agenda for Federal Discrimination Laws (Report, December 2021); Julian Gardner, An Equality Act for a Fairer Victoria (Equal Opportunity Review Final Report, June 2008).

121 For example, the Respect@Work: Sexual Harassment National Inquiry Report recommended the AHRC be provided with the above enforcement powers to assess compliance with the positive duty.142 On this basis, Division 4a of the Australian Human Rights Commission Act 1986 (Cth) now provides the AHRC power to enter into enforceable undertakings and issue compliance notices in relation to the positive duty. 122 The Regulatory Powers Act 2014 (Cth) similarly provides for a standardised suite of provisions in relation to monitoring and investigation powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings, and injunctions. This Act provides a helpful set of standard provisions for effective monitoring, investigation, and enforcement, while ensuring adequate safeguards and protecting procedural fairness. 123 To enhance the effectiveness of AHRC’s regulation of the positive duty, the Commission recommends that AHRC be given complementary enforcement powers to, at the close of a systemic inquiry, enter into enforceable undertakings, impose compliance notices, and impose civil penalties as discussed in more detail below (RECOMMENDATION 23).143 124 The Commission suggests these powers could operate as follows. Where an investigation has identified a contravention of the Act, the AHRC should be permitted to obtain agreement from the organisation involved to take steps to address discrimination without a complaint being made (an enforceable undertaking). If the terms of the undertaking are not complied with, AHRC should then be permitted to apply to a court for enforcement. If, following an investigation, an agreement with the duty holder cannot be reached in the form of an enforceable undertaking, the AHRC should then be permitted issue a compliance notice. Where a duty holder fails to comply with the notice, AHRC should be able to apply to a court for an order for compliance or an injunction. Requiring application to a court means the AHRC would retain its standing as an administrative body without determinative power.144 Finally, in extremely rare circumstances, it may be appropriate for AHRC to have the power to apply to a tribunal or court for an order that a person or entity pay a civil penalty. This would only be used where all other options have been exhausted and where an enforceable undertaking has been entered into, or a compliance notice issues, but the terms of the undertaking have been breached. 125 For further discussion see pages 349-389 of the Building Belonging Review.

142 Australian Human Rights Commission, Respect@Work: Sexual Harassment National Inquiry Report (2020). 143 This recommendation aligns with recommendation 17-18 made by the Building Belonging Review. 144 Julian Gardner, An Equality Act for a Fairer Victoria (Equal Opportunity Review Final Report, June 2008) 131, [6.149].

Question 14: What costs, benefits and other impacts would duty holders experience in meeting a positive duty under the DDA?

126 The adoption of a positive duty may have benefits for duty holders. In relation to workplaces, workplace discrimination remains alarmingly common. In 2023, nearly 1 in 3 workers reported experiencing discrimination.145 By requiring organisations and their employees to engage with anti-discrimination legislation in a proactive manner, a positive duty will increase general understanding of the impact of discrimination and the benefits associated with prevention and practices that encourage inclusion and diversity. This is likely to contribute to healthier workplaces, where is it easier to attract and retain staff. It may additionally, ultimately reduce the numbers of discrimination complaints. This will reduce costs to the organisation associated with staff turnover, responding to complaints, and reputational damage. Outside of the workplace context, improved understanding could lead to fewer complaints made by customers or clients against businesses. 127 A complex regulatory environment can create specific challenges for organisations, and some sectors already experience more regulation than others. Avoiding an unnecessary regulatory burden on business, individuals, and community organisations was a key concern raised with the Review.37 128 Stakeholders who raised this issue wanted to ensure that any legislative change did not greatly increase resources required to comply with the duty, including the time and costs of training.146 Submissions focused on the regulatory environment of particular sectors, including religious and charitable organisations, schools, and in small and medium-sized businesses.147 129 As we conclude in the Review, the Commission’s view is that this can be managed through appropriate drafting of the duty. Appropriate drafting, and where possible, alignment with existing positive duties in state and federal jurisdictions, will moderate the burden of responsibilities and ensure that relevant factors are taken into account when determining the adequacy of the steps taken to eliminate discrimination by duty holders. The adoption of appropriate regulatory enforcement powers that focus on supporting duty holders via education and cooperation will also assist to minimise any regulatory burden. Additionally, any proportionate, initial impacts are likely to be outweighed by the long-term benefits (better working environment, fewer complaints) discussed above. 130 For further discussion see pages 17, 24-25, 90-94, and 321-386 of the Building Belonging Review.

145 Lisa Annese, ‘2023-2024 Inclusion@Work Index: Workers Are Feeling Disillusioned Post-Pandemic’ (Media Release, Diversity Council Australia, 2024). 146 Small business roundtable, 7 March 2022. 147 Further commentary on the potential impact of a positive duty in terms regulatory burden on small and medium businesses is included at pages 221-224 of the Building Belonging Review.

Question 15: Should there be exceptions or limits to the application of a positive duty?

131 A positive duty of the manner proposed in the Issues Paper and recommended by the Commission above would be naturally limiting in that it would require only reasonable or proportionate steps, and take into account relevant factors and circumstances. (See RECOMMENDATION 18A-18C) 132 In investigating the potential benefits and disadvantages of implementing a positive duty in Queensland, the Commission formed the view that no exceptions should apply to the positive duty beyond those that already exist in relation to discrimination under the Anti-Discrimination Act, notwithstanding that the Building Belonging Review made a number of recommendations for amendments to exemptions. Where an exception applies, the relevant duty holder will be under no obligation to take reasonable and proportionate steps. 133 For further discussion see pages 17, 24-25, 90-94, and 321-386 of the Building Belonging Review.

Part 3 - Encouraging inclusion of people with disability in employment, education and other areas of life

There should be a stand-alone duty to make reasonable adjustments

Question 16: 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?

134 Under section 5(2) of the DDA, failure to make reasonable adjustments forms part of the definition of direct discrimination, that is, direct discrimination occurs if a person does not make reasonable adjustments. A ‘reasonable adjustment’ is defined as an adjustment to be made by a person unless making the adjustment would impose an unjustifiable hardship.148

148 Disability Discrimination Act 1992 (Cth) s 4.

135 In Queensland, the Anti-Discrimination Act implicitly requires reasonable adjustments (referred to as ‘reasonable accommodations’ in the Building Belonging Review) in the definition of indirect discrimination. Indirect discrimination occurs if a term is imposed, which a person cannot comply with because of their attribute, and a higher proportion of people without the attribute are able to comply, and the term is not reasonable.149 However, where a person with disability requires ‘special services or facilities’ in order to comply with a term, it is not unlawful discrimination if supply would cause ‘unjustifiable hardship’.150 136 In the Queensland context, the Commission determined that an express stand-alone duty to make reasonable accommodations would improve clarity and give greater certainty regarding the rights and obligations of the parties.151 137 An even greater need for clarity under the DDA emerged following the decision in Sklavos v Australasian College of Dermatologists.152 In Sklavos, the court determined that in order to establish direct discrimination, people with disability must prove that their disability is the reason for the failure to make reasonable adjustments. This decision has undermined the intended purpose of section 5(2) of the DDA which was to create a duty to take practical steps to address disadvantage experienced by people with disability.153 138 The Commission notes that in Queensland there was significant support for a stand-alone duty to make reasonable accommodations. Of the 33 submissions that responded to questions about the duty, 29 were in favour of a stand-alone duty in some form154 and 15 submissions specifically supported a stand-alone duty to make reasonable accommodations in relation to disability.155 One submitter to the Building Belonging Review gave the following example of a circumstance where greater certainty was needed around the requirement to make reasonable accommodations:

149 Anti-Discrimination Act 1991 (Qld) s 11. 150 Anti-Discrimination Act 1991 (Qld) ss 35, 36, 44, 51, 92, 100. 151 Legal Aid Queensland submission, 12; Name withheld (Sub.135) submission, 13-14. 152 Sklavos v Australasian College of Dermatologists [2017] FCAFC 128. 153 Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) 7–9. 154 Name withheld (Sub.026) submission; Public Advocate (Queensland) submission; Assoc Prof Dominique Allen submission; Fibromyalgia ME/CFS Gold Coast Support Group, Inc submission; Rainbow Families Queensland submission; PeakCare Queensland Inc; Queensland Network of Alcohol and Other Drug Agencies Ltd submission; Maurice Blackburn Lawyers submission; Vision Australia submission; Human Rights Law Alliance submission; Women’s Legal Service Qld submission; Australian Discrimination Law Experts Group submission; Queensland Council of Unions submission; Queensland Council for Civil Liberties submission; Community Legal Centres Queensland submission; Queensland Catholic Education Commission submission; Equality Australia submission; Legal Aid Queensland submission; Aged and Disability Advocacy Australia submission; Respect Inc and DecrimQLD submission; Name withheld (Sub.135) submission; Australian Industry Group submission; Caxton Legal Centre submission; Queensland Advocacy Incorporated submission; Queensland Law Society submission; Youth Advocacy Centre submission; Queensland Mental Health Commission submission; Department of Education (Qld) submission; Queenslanders with Disability Network submission. 155 Public Advocate (Queensland) submission; Assoc Prof Dominique Allen submission; Fibromyalgia ME/CFS Gold Coast Support Group, Inc submission; Christian Schools Australia submission; Maurice

In education for example my daughter is dyslexic so extra time was granted for tests/exams etc [sic] but it didn’t really help her. She could have better educational success if her assessments were verbal. Trying to fit people into boxes and generic criteria doesn’t always work.156

139 A stand-alone duty to make reasonable adjustments would also align with and better fulfil Australia’s obligations under the UNCRPD. The UNCPRD defines discrimination as including the ‘denial of reasonable accommodation’ and specifically provides that ‘[i]n order to promote equality and eliminate discrimination, State Parties shall take all appropriate steps to ensure that reasonable accommodation is provided’.157 140 The Commission recommends that the DDA be amended to include a stand-alone duty to make reasonable adjustments (RECCOMENDATION 24).158 141 For further discussion see pages 174-193 of the Building Belonging Review.

Question 17: 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?

142 The Commission considers that it is appropriate for the stand-alone duty to make reasonable adjustments apply to the existing areas covered by the DDA. Extending coverage to other areas would be likely to create untenable burdens that may lead to broad non-compliance and undermine the intent and purpose of anti-discrimination legislation.

143 In light of the Commission’s recommendations made at Question 8 and 19 that the unjustifiable hardship exception be removed from the DDA, and that a reasonableness requirement be incorporated into the proposed stand-alone duty to make reasonable adjustments (see below at Question 19), the Commission recommends that the term ‘reasonable’ is retained (RECOMMENDATION 25).159

Blackburn Lawyers submission; Vision Australia submission; Queensland Council for Civil Liberties submission; Community Legal Centres Queensland submission; Name withheld (Sub.135) submission; Australian Industry Group submission; Caxton Legal Centre submission; Queensland Mental Health Commission submission; Department of Education (Qld) submission; Queenslanders with Disability Network submission; Queensland Council of Unions submission. 156 Fibromyalgia ME/CFS Gold Coast Support Group, Inc submission, 12; Building Belonging Review, 188. 157 United Nations General Assembly, Convention on the Rights of Persons with Disabilities, 61st sess, UN Doc A/RES/61/106 (13 December 2006) Articles 2 and 5(3). 158 This recommendation aligns with recommendation 5 made by the Building Belonging Review. 159 This recommendation aligns with recommendation 5.1 made by the Building Belonging Review.

The exception of unjustifiable hardship should be repealed, but reflected in the factors for assessing ‘reasonableness’

Question 19: What is your preferred approach to achieving greater fairness and transparency in claims of unjustifiable hardship?

144 Some submitters to the Building Belonging Review expressed concerns about a stand-alone duty to make reasonable adjustments,160 these concerns may be addressed by ensuring the duty is subject to appropriate limitations. 145 As noted above at Question 8, the Commission’s view is the unjustifiable hardship exception should be removed from the DDA. (see RECOMMENDATION 12).161 As the Commission has recommended the concept of unjustifiable hardship be removed, the Commission suggests that the stand-alone duty to make reasonable adjustments incorporate a ‘reasonableness’ test (RECOMMENDATION 26).162 146 During the Building Belonging Review the Commission received submissions which supported employing the same factors to determine the reasonableness of an adjustment, as those which are already used to assess whether there is an unjustifiable hardship.163 However, some stakeholders told us that too much weight is given to the cost and effort of providing adjustments and not enough to the impacts on the person requiring the services or facilities and the broader social benefits of inclusion.164 147 The Commission suggests ‘reasonableness’ should be defined in the same manner as for indirect discrimination.165 That is, non-exhaustive factors for assessing whether an adjustment is reasonable should be adopted (RECOMMENDATION 27).166 While financial circumstances is an important factor, proportionate regard must also be given to the impact on the person who requires the adjustment and broader consideration of the benefits and disadvantages of the adjustment on other people.

160 Joint Churches submission, 3; James Cook University submission, 1; Australian Industry Group submission, 4; Medical Insurance Group Australia submission, 3. 161 This recommendation aligns with recommendation 5.1 made by the Building Belonging Review. 162 This recommendation aligns with recommendation 5.1 made by the Building Belonging Review. 163 Australian Industry Group submission, 4; Queensland Catholic Education Commission submission, 4. 164 Queensland Advocacy Incorporated, 14; Caxton Legal Centre, 5; Australian Discrimination Law Experts Group submission, 24; Community Legal Centres Queensland submission, 2; Legal Aid Queensland submission, 13. 165 This recommendation aligns with recommendation 5.1 made by the Building Belonging Review. 166 This recommendation aligns with recommendation 5 made by the Building Belonging Review.

148 The definition of reasonableness should also include the additional factors proposed by the Disability Royal Commission to be incorporated into the definition of ‘unjustifiable hardship’,167 being the extent to which the person with disability was consulted, and whether alternative options were available to remove or reduce the hardship on the person should be incorporated into this definition (RECOMMENDATION 28). The inclusion of these elements will assist to ensure employers do not make decisions about the employment of a person with disability without considering factual information about their circumstances, avoiding circumstances in which employers make assumptions about the capabilities of people with disability. 149 For further discussion see pages 192-195 of the Building Belonging Review.

For discrimination in employment - improve assessments of whether a person can carry out the inherent requirements of the job

Question 20: What are your views on amending the DDA 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?

150 The Commission acknowledges the Disability Royal Commission highlighted that the operation of the inherent requirements exception acts as a barrier to employment for people with disability and can discourage people with disability from applying for roles.168 On submitted to the Building Belonging review noted:

> People jump to conclusions. When they see the outside of your body, they see that you’re not going well at the moment. And they go, ah, no, you wouldn’t be able to do that. So that’s preconceived ideas.169

151 Currently, an employer has no legal obligation to identify the inherent requirements of a job in a job advertisement. Nor does the employer have any obligation to inform any applicant about whether adjustments will be considered or made. This can have the effect of discouraging people with disability applying for roles and fails to encourage employers to engage in discussions with prospective employees regarding adjustments.170

167 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 2023) vol 4 ‘Realising the human rights of people with disability’ 337. 168 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 2023) vol 7 Part B ‘Inclusive education, employment and housing’ 389. 169 People with disability roundtable, 4 February 2022. 170 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 2023) vol 7 Part B ‘Inclusive education, employment and housing’ 390-391.

152 During the Disability Royal Commission, evidence was presented that often ‘inherent requirements’ were listed in a job advertisement which were alleged not to be inherent to the work concerned.171 For example, ‘a ‘planner role’ advertised by the National Disability Insurance Agency (NDIA) listed inherent requirements that included being able to ‘address vehicle problems’ and ‘walk over uneven terrain’.172 Many jobs also required a drivers’ license, even where driving was not an integral part of the role.173 153 Exclusion from employment undermines people with disabilities’ rights under Article 27 UNCRPD which states ‘States Parties shall safeguard and promote the realization of the right to work…by taking appropriate steps, including through legislation, to, inter alia: [p]rohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment’. In the Queensland context, employment discrimination engages the right to equal and effective protection from discrimination (section 15, Human Rights Act) and the right to privacy (section 25, Human Rights Act).174 154 To address these concerns, the Commission endorses the recommendations made by the Disability Royal Commission, that two factors should be inserted into the DDA that the ‘nature and extent of any adjustments made’ and the ‘extent of consultation with any person with disability concerned’ must be considered by an employer when determining whether a prospective or existing employee is able to carry out the inherent requirements of particular work.175 The Commission agrees this will assist to ensure people with disability are appropriately consulted in relation to employment decisions and ensures decisions are based on that information as opposed to assumptions or bias.

171 Disability Royal Commission, Transcript, Melissa Donnelly, Public hearing 19, 23 November 2021, P-99 [33–41]; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 2023) vol 7 Part B ‘Inclusive education, employment and housing’ 391. 172 Disability Royal Commission, Transcript, Melissa Donnelly, Public hearing 19, 23 November 2021, P-99 [33–41]; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 2023) vol 7 Part B ‘Inclusive education, employment and housing’ 391. 173 Disability Royal Commission, Transcript, Melissa Donnelly, Exhibit 9-25, ‘Statement of ‘Jamie’’, 18 November 2020, at [9]; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 2023) vol 7 Part B ‘Inclusive education, employment and housing’ 391. 174 Per Bell J ‘because of the intrinsic connection between employment, dignity and the private life of individuals, especially as regards their relationships with other people, a substantial argument can be advanced that, in certain circumstances at least, [the right to privacy] do[es] apply to restrictions upon employment’: ZZ v Secretary, Department of Justice [2013] VSC 267. 175 Disability Royal Commission, ‘Inclusive education, employment and housing’, Final Report, 2023, Volume 7, Part B, 438.

Question 21: Are there other amendments to the DDA that could support engagement between prospective or current employers and prospective or current employees to better understand the inherent requirements of a job?

155 The Commission supports the recommendation made by the Productivity Commission in the 2004 Review of the Disability Discrimination Act 1992 that guidelines should be developed in relation to the factors that might be taken into account when identifying inherent requirements of a particular role.176 As argued by the Productivity Commission, this would enable a reasonably detailed approach to be taken by employers (RECOMMENDATION 29).

For discrimination in education — specify that it is unlawful to discriminate by suspending a student

Question 23: Should there be exceptions or limits on when exclusion is unlawful?

156 School Disciplinary Absences (SDAs) are commonly used in Queensland. They include short (1-10 days) and long (11-20 days) suspensions, as well as exclusions, and cancellation. In 2023, there were 76,293 short suspensions and 3,015 long suspensions, 1,743 exclusions.177 Although the rates of short and long suspensions have remained relatively stable over the past five years, the number of student learning days lost to suspension has increased from 0.32% in 2019 to 0.34% in 2023.178

157 Where children and young people with disabilities are excluded (including via suspension) from mainstream education, their human rights will be limited. This includes their right to access to education appropriate to their needs (protected by Article 28 Convention on the Rights of the Child (CRC) and section 36(1) Human Rights Act); their rights to protection that is in their best interests (protected by Article 3 CRC and section 26 Human Rights Act); and their right to enjoy their rights without discrimination (protected by Article 2 CRC and section 15(2) Human Rights Act).

176 Australian Government Productivity Commission, ‘Review of the Disability Discrimination Act 1992’, Productivity Commission Inquiry Report, Volume 1, 2004, 220. 177 Department of Education, School Disciplinary Absences (Public report, September 2024). Available at: https://www.data.qld.gov.au/dataset/school-disciplinary-absences. 178 Department of Education, School Disciplinary Absences (Public report, September 2024). Available at: < https://www.data.qld.gov.au/dataset/school-disciplinary-absences>.

158 Education is a protective factor against poor life outcomes179 and an indispensable means of realising other human rights.180 The exclusion or failure to engage a child in education can have far-reaching and long-term consequences for both the child and the community.181

159 In September 2025, the Queensland Family and Child Commission and the Office of the Aboriginal and Torres Strait Islander Children’s Commission published the Include me, don’t exclude me report on the experience of children who have been subject to SDAs. The report makes the following observations:

  • suspensions disproportionately affect children with disabilities as well as First Nations children, and those in out-of-home care; and
  • suspensions can lead to poorer mental health, increased criminal justice involvement, prolonged unemployment, stigma and rejection.183

160 Section 22(2) DDA provides that it is unlawful for an educational authority to discriminate against a student on the grounds of a student’s disability by denying or limiting a student’s access to any benefit provided by the authority, by expelling the student, or by subjecting the student to any other detriment.

161 In light of evidence that suspensions disproportionately affect students with disability, the Commission supports implementation of the recommendation made by the Disability Royal Commission for the DDA,184 to additionally expressly provide that suspension can constitute discrimination (RECOMMENDATION 30). This will ensure students with disability are facilitated to remain engaged in education.

179 See, for example, Paediatric Policy and Advocacy Committee, ‘Early Childhood: The Importance of the Early Years’ (Position statement, Royal Australasian College of Physicians, May 2019) 37 Available at <racp.edu.au/docs/default-source/advocacy-library/early-childhood-importance-of-early-years-position-statement.pdf>; Bob Atkinson, ‘Report on Youth Justice’ (Special Advisor Report, Version 2, 8 June 2018) 33-34. 180 United Nations Office of the High Commissioner for Human Rights, CESCR General Comment No. 13: The Right to Education (Art. 13), UN Doc E/C.12/1999/10 (8 December 1999) 1. 181 Bob Atkinson, ‘Report on Youth Justice’ (Special Advisor Report, Version 2, 8 June 2018) 33-34. 182 The State of Queensland (Queensland Family and Child Commission), Include me, don’t exclude me (Report, September 2025). 183 The State of Queensland (Queensland Family and Child Commission), Include me, don’t exclude me (Report, September 2025) 8. 184 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 2023) vol 7 Part B ‘Inclusive education, employment and housing’ 170.

Part 4 - Improving access to justice

Introduce protections against vilification on the grounds of disability

Question 27: How could the DDA be amended to protect people with disability from offensive behaviour and/or harassment?

162 In Queensland, the Anti-Discrimination Act prohibits public acts that incite hatred towards, serious contempt for, or severe ridicule of a person or people on the ground of race, religion, sexuality, sex characteristics, or gender identity (civil vilification).185 A civil remedy is provided for a contravention of this prohibition, which is commenced by a complaint to the Commission that may be referred to a tribunal for hearing and determination. Queensland also has a criminal offence of serious vilification, involving a threat of harm to someone or their property, or an incitement for others to do so.186 163 The Issues Paper proposes to make unlawful an act that is reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person or group of people the act is done because of the disability of the other person. This mimics the ‘offensive behaviour’ provision in section 18C of the Racial Discrimination Act. That provision does not create a criminal offence. However, pursuant to section 46P of the Australian Human Rights Commission Act 1986 (Cth), people may take complaints about contravention of section 18C to the Australian Human Rights Commission. If at that point, the complaint cannot be resolved, then an application may be made to the relevant court. 164 While Queensland does not prohibit vilification on the basis of disability187, general vilification complaints data at the Commission indicates there has been a level of success in resolving complaints via conciliation. Historically, approximately 55-60% of all complaints received are accepted.188 In the period from 1 January 2009189 to 30 June 2021, the Commission accepted 209 complaints of vilification. Of the 209 accepted vilification complaints in that period, 83 were resolved through conciliation (approximately 40%) and 61 were referred to the tribunal (approximately 29%). Over that period, the average rates for conciliation and referral for overall complaints were approximately 56% and 25% respectively. Conciliators also report that the conciliation process has been effective in increasing understanding as to conduct that is unlawful and the impacts of vilification on people subjected to it.

185 Anti-Discrimination Act 1991 (Qld) s 124A. 186 Criminal Code Act 1899 (Qld) Sch 1, s 52A. 187 The Respect at Work and Other Legislation Amendment Act 2024 amended the Anti-Discrimination Act to include vilification on the basis of disability, however, commencement of that legislation was paused by the Queensland Government on 14 March 2025. 188 The low percentage for 2020-2021 reflects the increase in the number of complaints received and a resultant backlog. 189 The date of commencement of the Commission’s current database.

165 Vilification has serious effects on dignity and prevents people with disability from enjoying their fundamental human rights. As recognised by People with Disability Australia, not only does vilification harm mental health:

> ‘it has a cascading effect on the enjoyment of a host of fundamental human rights set out in the [UN]CRPD. For example, if a person is frequently vilified on public transport, they may be too frightened to use public transport to travel to work, school, or university. This infringes on their right to work (Article 27), right to education (Article 24) and in turn, right to an adequate standard of living (Article 28). More generally, people who are too afraid to leave their homes due to vilification cannot enjoy their right to be included in the community (Article 19)’.190

166 Prohibiting vilification or ‘offensive behaviour’ on the basis of disability is consistent with obligations under the UNCRPD. Article 16 of the UNCRPD imposes obligations to take legislative and other measures to protect people with disability from violence and abuse, and to put in place effective legislation and policies to ensure that instances of violence and abuse against people with disabilities are identified, investigated, and where appropriate, prosecuted. 167 On this basis, the Commission supports the recommendation made by the Disability Royal Commission to introduce an offensive behaviour provision to make unlawful an act that is reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person or group of people the act is done because of the disability of the other person (RECOMMENDATION 31).191

Harm-based prohibition

168 The Commission supports the framing of the proposed ‘offensive behaviour’ provision which is harm-based. A criticism of prohibitions of civil vilification in the Anti-Discrimination Act is that it does not place enough emphasis on the harm experienced by victims, and the harm caused to broader society in terms of social cohesion. 169 For the same reasons, it was suggested to the Victorian inquiry into anti-vilification protections that a harm-based provision would reflect the ordinary understanding of the meaning of vilification192 as an expression of hatred or abuse, and reduce the evidentiary burden on complainants to prove incitement.193

190 People with Disability Australia, Submission in response to the Inquiry into the Criminal Code Amendment (Hate Crimes) Bill 2024 [PDF 375KB] 4 November 2024, accessed 22 January 2025. 191 This recommendation aligns with the Commission’s recommendations to the first Vilification Inquiry and the second Vilification Inquiry. 192 The Macquarie Dictionary meaning of ‘vilify’ is to speak evil of, defame, traduce – to make vile’. 193 Legislative Assembly Legal and Social Issues Committee, Victorian Parliament, Inquiry into anti-vilification protections (2021) 119.

170 The Victorian Committee considered that incorporating a harm-based test would enhance the legal and operational effectiveness of the legislation by prohibiting all forms of vilification and increasing the utilisation and awareness of the Act through more complaints and enquiries.194 The reasonable person test maintains a high threshold for restricting freedom of speech and avoids misunderstanding between the ordinary meaning of the words ‘offend’ and ‘insult’ and the judicial interpretation of those terms as used in the Racial Discrimination section 18C. 171 Amendments to the Anti-Discrimination Act that would have been made by the RAW Act, currently paused, would have introduced a harm-based vilification provision.195

Question 28: If the DDA were to prohibit offensive behaviour and/or harassment, how should these terms be defined?

172 Under section 18C of the Racial Discrimination Act, on which the offensive behaviour provision is proposed to be modelled, the meaning of ‘public act’ is an action that:

  • causes words, sounds, images or writing to be communicated to the public; or
  • is done in a public place; or
  • is done in the sight or hearing of people who are in a public place.

173 A public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.196 174 In Queensland, a public act for the purposes of the civil vilification is defined in broadly similar terms.197 In his second reading speech for the Bill that introduced the vilification provisions in 2001, the Premier at the time noted that the prohibitions broadly targeted statements in public, as the government considered it was not appropriate to proscribe private behaviour.198 However, courts and tribunals in Queensland have previously concluded that communications within workplaces and classrooms are not a public act.199

194 Legislative Assembly Legal and Social Issues Committee, Victorian Parliament, Inquiry into anti-vilification protections (2021) 120. 195 Respect at Work and Other Legislation Amendment Act 2024 (Qld), s 21 (inserting s 124C into the Anti-Discrimination Act). 196 Racial Discrimination Act 1975 (Cth) s 10 (2). 197 A public act is: any form of communication to the public, including by speaking, writing, printing, displaying notices, broadcasting, telecasting, screening or playing of tapes or other recorded material, or by electronic means; and any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia; but does not include the distribution or dissemination of any matter by a person to the public if the person does not know, and could not reasonably be expected to know, the content of the matter. See Anti-Discrimination Act 1991 (Qld) s 124A. 198 Queensland, Parliamentary Debates, House of Representatives, 22 March 2001, 67 (Peter Beattie, Premier and Minister for Trade). 199 For example, Park v State of Queensland & Anor [2013] QCAT 183, Bero v Wilmar Sugar Pty Ltd & Ors [2016] QCAT 371, Ms RA v NC [2018] QCAT 94. See also the NSW decision in *Riley v State of New

175 The areas of activity in which discrimination is prohibited under the Anti-Discrimination Act and DDA are areas of public life. Work is an area of activity in which discrimination is prohibited under both Acts.200 Whilst entry into workplaces might be restricted to workers and service providers, an enclosed workplace might include numbers of people ranging from a few to many. Schools also include volunteers, parents, and lay people. People in a workplace comprise a segment of the public. Likewise for educational institutions. 176 The Commission’s approach has been that groups of people in workplaces and schools are segments of the public. This approach is consistent with the intention that only private behaviour is excluded from the prohibition of vilification, and that work and education are areas of public life. 177 It would be anomalous that people who perform work outside with others, (for example construction workers, road workers, gardening and landscape providers, surveyors) are protected from vilification but those who work in enclosed environments do not have that protection. 178 To avoid any interpretations in relation to the DDA that communications in classrooms and workplaces are not public acts, the Commission recommends that the ‘offensive behaviour’ provision clarify that it is intended to apply to environments such as workplaces and places of education that are not open to the public generally (RECOMMENDATION 32).201 179 One mechanism for achieving this could be to take the approach taken in the New South Wales Crimes Act 1900 (for the offence of publicly threatening or inciting violence on various grounds), which provides: ‘For the avoidance of doubt, an act may be a public act even if it occurs on private land’.202

Question 29: Should there be exemptions for any behaviour, similar to the Racial Discrimination Act?

180 In Queensland, conduct will not amount to civil vilification where the act involves the publication of a fair report of a public act; the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.203

South Wales (Department of Education) [2019] NSWCATAD 223, where comments made within school grounds were considered to not be a communication to the public as the public was not entitled to be present on the grounds. 200 Anti-Discrimination Act 1991 s 6, and Chapter 2 Part 4 Division 2. Disability Discrimination Act 1992 (Cth) Part 2 Division 1-2. 201 This recommendation aligns with the Commission’s recommendations to the first Vilification Inquiry and the second Vilification Inquiry. 202 Crimes Act 1900 (NSW) section 93Z. 203 Anti-Discrimination Act 1991 (Qld) s 124A (2).

181 The exceptions in subsection 124A (2) are an integral part of the vilification provisions, as they provide a balance for freedom of speech.204 Notably, Queensland’s prohibition of vilification in section 124A of the Anti-Discrimination Act has been found not to burden the implied freedom of political communication under the Constitution.205 182 The constitutionality of section 124A was challenged in a case to the Queensland Court of Appeal in Owen v Menzies.206 The Court of Appeal held that section 124A is not inconsistent with the implied protection of freedom of political communication provided by the Constitution. 183 The judges of the Court agreed that if section 124A did burden the implied constitutional freedom, any burden was incidental and reasonably appropriate and adapted to serve a legitimate end. That end is the promotion of equality of opportunity for all members of the community by prohibiting objectionable conduct inconsistent with the purpose of the Anti-Discrimination Act, and the Parliament’s desire to improve the quality of democratic life through an educated community appreciative and respectful of the dignity and worth of all its members. Importantly, the Court agreed any burden was confined and controlled by section 124A (2) – the exceptions. 184 On this basis, the Commission supports inclusion of exceptions which closely resemble those in section 124A (2) of the Anti-Discrimination Act as exceptions to the new ‘offensive behaviour’ provision (RECOMMENDATION 33).207 The Commission notes the exceptions under section 124A of the Anti-Discrimination Act are markedly similar to the exceptions contained in section 18D of the Racial Discrimination Act.

Question 30: 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?

Positive duty to eliminate offensive behaviour

185 Despite the effectiveness of conciliation, people subjected to vilification may be reluctant to make a complaint because the process involves engaging with the person who has vilified them, or because the person who has vilified them may refuse participate in the conciliation, and they may be left to refer the complaint to the tribunal. This places the onus and burden on the person subjected to the vilification to take action.

204 Deen v Lamb [2001] QADT 9. 205 Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170. 206 Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170. 207 This recommendation aligns with the Commission’s recommendations to the first Vilification Inquiry and the second Vilification Inquiry.

186 Pursuing a complaint through the tribunal hearing process requires commitment and can be onerous on the individual, and the outcome might be unrewarding. A more proactive approach would be to extend the proposed positive duty to eliminate discrimination to additionally require reasonable and proportionate measures be taken to eliminate offensive behaviour (RECOMMENDATION 34).208 187 A positive duty provides clarity and puts the responsibility onto the duty holder, rather than the obligation being implicit by way of vicarious liability and indirect discrimination. It also relieves the burden on a person making a complaint, where there is an appropriate regulatory framework. The Victorian Legal and Social Issues Standing Committee stated in its report that it considered ‘establishing a positive duty is essential to the effective operation of anti-vilification laws, as it is concerned with addressing issues from a systemic perspective’.209

Who can make a complaint

188 Under section 134 of the Anti-Discrimination Act, a person who can make a complaint is generally restricted to the person subject of the alleged contravention or their agent. However, for complaints of vilification, a ‘relevant entity’ may make a complaint. A relevant entity means ‘a body corporate or an unincorporated body, a primary purpose of which is the promotion of the interests or welfare of people of a particular race, religion, sexuality or gender identity or having particular sex characteristics’. Before accepting a complaint from a relevant entity, the Commissioner has to be satisfied that:

  • the complaint is made in good faith;
  • the relevant alleged contravention is about conduct that has affected or is likely to affect relevant people for the relevant entity; and
  • it is in the interests of justice to accept the complaint.

189 In the Building Belonging Review, this criteria was noted to be unique in Australia. Other jurisdictions required organisations to demonstrate a ‘sufficient interest’ and/or that they had the consent of their members.210 190 The Building Belonging Review asked whether an organisation should be able to make a complaint on behalf of a person who has experienced discrimination. Out of 47 submissions receive don the issue, 43 submissions were supportive. The key benefits of allowing organisations to bring complaints were:

  • reducing the burden on people who have experienced discrimination and sexual harassment; and

208 This recommendation aligns with the Commission’s recommendations to the first Vilification Inquiry and the second Vilification Inquiry. 209 Legislative Assembly Legal and Social Issues Committee, Victorian Parliament, Inquiry into anti-vilification protections (2021) 144. 210 For discussion on each of the jurisdictions, see The Building Belonging Review 178.

  • boosting the capacity to address systemic issues, particularly where they are in the public interest.211

191 The Commission acknowledges that the issue of who may make a complaint under the DDA is dealt with by the Australian Human Rights Commission Act 1986 (Cth) and therefore may be beyond the scope of this review. However, if introduction of an offensive behaviour provision is recommended, consideration should be given to amendments that would allow these complaints to be made by organisations on behalf of marginalised communities, and further, enabling the organisation to progress the complaint in court. (RECOMMENDATION 35).

Policing activities should be an area of activity in which discrimination is prohibited

Question 31: How could the DDA be amended to ensure that it covers policing?

192 When a person is a defendant or witness in a criminal matter, their initial interactions regarding that matter are generally with a police officer. This initial interaction can set the scene for the overall interaction with the criminal justice system. 193 Queensland police conduct is already captured by the Anti-Discrimination Act through the area of ‘administration of state laws and programs’212. Police actions should be captured by the DDA so that people with disability can raise concerns if they experience discrimination when interacting with police (RECOMMENDATION 36). The Commission expects that expanding the DDA in this manner could also have the effect of encouraging federal, state and territory police services to ensure their officers are appropriately trained to avoid discrimination claims. 194 However, instead of amending the definition of ‘services’ the Commission recommends a new provision or provisions be inserted into the DDA to capture policing activities (RECOMMENDATION 37). This will create enhanced clarity for police and people alleging disability discrimination. Additionally, noting the definition of services has not traditionally been understood to incorporate policing, this would reduce future statutory interpretation problems.

211 The Building Belonging Review 173-174. 212 Anti-Discrimination Act 1991 (Qld) s 101.

Part 5 - Exemptions

Narrow exemptions in relation to superannuation and insurance and frame special measures in the affirmative rather than as an exemption to unlawful discrimination

Question 33: Could any of the permanent exemptions be narrowed or updated, while balancing other policy considerations?

Superannuation and insurance

195 Similar to the DDA, the Anti-Discrimination Act contains broad exemptions to discrimination on the basis of impairment (disability) and age in the areas of superannuation and insurance .213 In both Acts, it is not unlawful discrimination if it is based on actuarial or statistical data on which it is reasonable for the person to rely, and is reasonable having regard to the data and other relevant factors. If no actuarial or statistical data is available, the exemption applies if the discrimination is reasonable having regard to any other relevant factors. 196 A survey of mental health consumers found that they experience increased premiums, excessive restrictions on policies, and rejection of cover once a mental health issue has been disclosed.214 While blanket exclusions from many travel and life insurance services have lifted following inquiries and reports in a number of jurisdictions,215 a 2021 report indicates that barriers to equitable access and discrimination are still regularly experienced by people who have mental illness.216 197 In the Building Belonging Review, we heard that discrimination may be occurring based on a predisposition to a disease. Intersex Human Rights Australia identified a study of 174 Australian consumers with genetic traits that predispose them to cancer who had difficulties obtaining insurance despite most having no medical history or symptoms, even after risk-reduction strategies.217

213 Anti-Discrimination Act 1991 (Qld) Ch 2 divs 5-6; Disability Discrimination Act 1992 (Cth) s 46. 214 Mental Health Council of Australia and beyondblue, Mental Health Discrimination and Insurance: A Survey of Consumer Experiences (2011) https://www.beyondblue.org.au/about-us/about-our-work/discrimination-in-insurance. 215 Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Final Report, February 2019); Victorian Equal Opportunity and Human Rights Commission, Fair-minded Cover: Investigation into Mental Health Discrimination in Travel Insurance (Report, 2019); Parliamentary Joint Committee on Corporations and Financial Services (Cth), Life Insurance Industry (Inquiry Report, March 2018); Productivity Commission (Cth), Mental Health (Inquiry Report, June 2020). 216 Public Interest Advocacy Centre, Mental Health Discrimination in Insurance (Report, October 2021) https://piac.asn.au/project-highlight/mental-health-and-insurance. 217 Intersex Human Rights Australia submission, 24, referring to Jane Tiller et al. ‘Genetic Discrimination by Australian Insurance Companies: A Survey of Consumer Experiences’ (2020) European Journal of Human Genetics 28 (1).

198 When the DDA was reviewed by the Productivity Commission,218 both the Insurance Council of Australia (ICA) and the Investment and Financial Services Association (IFSA) explained that changes to the exception under the DDA would lead to unjustifiable hardship for the industry and increase costs to all consumers.219 The ICA also said that the exemption can be justified because insurance providers were already at a disadvantage because customers do not reveal all aspects of their health status. IFSA also commented that there is limited actuarial and statistical data in the small Australian market to rely upon, and a flexible approach that allows for other relevant information to be considered was necessary for practical reasons.220 199 The Productivity Commission ultimately recommended that while the exemption in the DDA should remain, consideration of ‘other relevant factors’ should not be based on stereotypical assumptions about disability and unfounded assumptions about risks related to disability. This was consistent with IFSA’s submission that agreed it was problematic to use a formulaic approach, and inappropriate to rely on stereotypes.221 IFSA suggested that clarification about what other factors might include could be qualified to read, ‘factors relevant to the nature and extent of the cover’. 200 Similarly, in submissions to the Building Belonging Review, it was suggested that the provisions should be more limited and new provisions, or a legislative note, should incorporate the following guidance to interrogate the veracity of the data, namely that the data:

  • must be contemporarily relevant
  • must state that the condition of the person seeking insurance is an unacceptable risk
  • should come from an Australian source or, if there is no Australian source for the data, the insurance provider should provide further materials as to the local relevance and applicability of data from overseas, together with an explanation for why there is no Australian data upon which to rely.222

201 The Commission recommends the insurance and superannuation exemptions should be updated to include a non-exhaustive list of factors which provide guidance on whether it is reasonable to rely on actuarial or statistical data or other relevant factors. These factors may include whether the data source:

218 Australian Government Productivity Commission, Review of the Disability Discrimination Act 1992, vol 1 (Inquiry Report, 30 April 2004) Rec 12.1, 56. 219 Australian Government Productivity Commission, Review of the Disability Discrimination Act 1992, vol 1 (Inquiry Report, 30 April 2004) 328–329. 220 Investment and Financial Services Association (IFSA), Submission in response to the Productivity Commission Issues Paper and Review of Disability Discrimination Act 1992, 5 June 2003, 26. 221 Australian Government Productivity Commission, Review of the Disability Discrimination Act 1992, vol 1 (Inquiry Report, 30 April 2004) 336. 222 Australian Discrimination Law Experts Group submission, 66-67. These points are drawn from the following cases: QBE Travel Insurance v Bassanelli [2004] FCA 396 [30]; Xiros v Fortis Life Assurance Ltd [2001] FMCA 15 [17]; Opinion re: Elizabeth Kors and AMP Society [1998] QADT 23.

  • is up to date
  • is relevant to the type and terms or conditions of the policy
  • indicates that the person poses an ‘unacceptable risk’
  • is a reasonable source
  • is from an Australian data source, or if from overseas, how it is applicable in the local context (RECOMMENDATION 38).

202 The provisions should also require that, on request, the data on which the service provider is relying is provided to a consumer within a reasonable timeframe (RECOMMENDATION 39).223 203 For further discussion see pages 586-596 of the Building Belonging Review.

Special measures

204 Anti-discrimination laws have long endorsed taking proactive steps to address disadvantage through measures such as affirmative action, and policies and programs to support target groups. Special measures and affirmative actions aim to ‘correct or compensate for past or present discrimination, or to prevent discrimination from recurring in the future’.224 Under Queensland’s Human Rights Act, measures taken for the purpose of assisting or advancing people or groups of people disadvantaged because of discrimination do not constitute discrimination.225 205 In 2010, the Equal Opportunity Act 2010 (Vic) (Victorian Act) was updated to clarify that taking ‘special measures’ to promote or realise substantive equality are ‘an expression of equality, rather than an exception to it.’226 Section 12 of the Victorian Act provides that a person may take a special measure for the purpose of promoting or realising substantive equality for members of a group with a particular attribute and that a person does not discriminate against another person by taking a special measure. A special measure must be undertaken in good faith, be reasonably likely to achieve their purpose, be proportionate, and be justifiable because the particular group have a need for advancement or assistance.

223 This recommendation aligns with recommendation 41 made by the Building Belonging Review. 224 Julie O’Brien, ‘Affirmative Action, Special Measures and the Sex Discrimination Act’ (2004) 27(3) University of New South Wales Law Journal 840. 225 Human Rights Act 2019 (Qld) s 15(5). 226 Victoria, Parliamentary Debates, Legislative Assembly, 10 March 2010, 786 (Rob Hulls, Attorney-General).

206 Like the DDA, special measures under the Anti-Discrimination Act227 are framed in terms of an exception to unlawful discrimination, which must be proven by the respondent if a complaint of discrimination is made. Submissions to the Building Belonging Review expressed strong support for adopting the approach taken by the Victorian Act.228 207 The Commission recommends the review team explore adopting the approach taken by section 12 of the Equal Opportunity Act 2010 (Vic). (RECOMMENDATION 40).229 208 For further discussion see pages 110-116 of the Building Belonging Review.

Part 6 - Modernising the DDA

Rules about assistance animals need to be clearer

Question 38: How could the protections for assistance animals be clarified for both people with disability and duty holders, including in relation to evidence of training, evidence or standards of hygiene and behaviour that are appropriate for a public place?

209 The Commission sets out Queensland law in relation to discrimination on the basis the person relies on a guide, hearing or assistance dog in its submission on the consultation for National Principles for the Regulation of Assistance Animals.230 210 The Commission is aware of ongoing concerns raised by people with disabilities and the organisations that support them about the inconsistencies between the approach taken to discrimination in relation to assistance in Queensland and federally. In response to these concerns, as part of the Building Belonging Review, the Commission recommended that the approach in the DDA be adopted in Queensland.231

227 Anti-Discrimination Act 1991 (Qld) ss 104 (welfare measure), 105 (equal opportunity measure). 228 See for example: Australian Discrimination Law Experts Group submission, 39; Queensland Council of Unions submission 17-18; Legal Aid Queensland submission, 58; Caxton Legal Centre submission, 17; Queensland Law Society submission, 11; Rainbow Families Queensland submission, 3. 229 This recommendation aligns with recommendation 4 made by the Building Belonging Review. 230 Queensland Human Rights Commission, Submission to the Australian Government Department of Social Services, National Principles for the regulation of Assistance Animals (30 May 2025). This document is available from the Commission’s website: https://www.qhrc.qld.gov.au/resources/submissions. 231 Queensland Human Rights Commission, Building belonging: Review of Queensland’s Anti-Discrimination Act 1991 (Report, July 2022) 26, recommendation 21.3.

211 In Queensland, guide, hearing, and assistance dogs are essentially defined as dogs ‘trained’ to assist the person’s disability and reduce their need for support. In the Building Belonging Review, Tenants Queensland recommended that the approach to ‘trained’ should be that taken in Jackson v Ocean Blue Queensland232 where training by an approved trainer or approved training institution was not required, but rather required that the animal perform identifiable physical tasks and behaviour to reduce a person’s need for supports.233 This aligns with the existing definition of assistance animal under the DDA, which includes ‘animals trained to assist a person with a disability to alleviate the effect of the disability; and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.234 212 However, more clarity on what is required of people with disability and duty-holders is needed to support greater protections for people who rely on assistance animals. It is likely that this clarity would be best achieved through a mixture of legislative amendments and guidance materials. However, the Commission acknowledges this is a complex area, and reform should be guided primarily by a broad cross-section of people who use assistance animals and the advocacy groups that support them (RECOMMENDATION 41).235 213 For further discussion see pages 402-406 of the Building Belonging Review.

Empower the Australian Human Rights Commission to provide advice and reject disability action plans

Question 41 & 44: Should the Australian Human Rights Commission be able to reject action plans that fail to meet minimum requirements? Are there any other changes to the action plan process that you would recommend?

214 Under the DDA, organisations may develop a ‘disability action plan’ which is provided to the AHRC.236 Disability action plans provide an opportunity for duty holders to publicly commit to prevent disability discrimination, increase inclusivity and promote the rights of people with disability. 215 The development of action plans has increasingly been considered an effective tool for motivating duty holders to take measurable steps towards eliminating systemic discrimination by supporting and promoting transparency, and through it to make progress towards substantive equality.237

232 Jackson v Ocean Blue Queensland Pty Ltd [2020] QCAT 23. 233 Tenants Queensland submission, 5. 234 Disability Discrimination Act 1992 (Cth) s 9(2)(c). 235 This recommendation aligns with recommendation 21 made by the Building Belonging Review. 236 Disability Discrimination Act 1992 (Cth) Part 3. 237 Simone Cusack, ‘The Equal Opportunity Act 2010 (Vic) Review function: ‘Soft’ Regulation or an Effective Tool to Promote Transparency and Equality?’ (2021) Law in Context 37(2) 132-144.

216 In a submission to the Building Belonging Review, Associate Professor Dominique Allen, a specialist in anti-discrimination law, supported legislative provisions that allow the Commission to assist organisations to develop action plans238 as this can assist them to meet their obligations under the Act. 217 The Commission’s view is that action plans could be more impactful if they are held to certain standards. This additionally would avoid any circumstances in which an action plan that is not appropriate could attain legitimacy through its registration with the AHRC. 218 The Commission suggests the AHRC be legislatively empowered to provide advice on action plans, to set minimum requirements for action plans and to reject action plans that fail to meet those requirements (RECOMMENDATION 42).239

Improve compliance with disability standards by introducing a positive duty complemented by adequate regulatory powers

Question 45: How could compliance with and enforcement of the Disability Standards be improved?

219 Disability Standards are instruments made under the DDA to supplement and support the DDA by providing more detail on rights and responsibilities.240 In contrast to disability action plans, Disability Standards are legally binding. However, Disability Standards are enforced through existing individual complaint mechanisms which means the burden of enforcement lies on the individual seeking to enforce compliance with the Standard.241

238 Assoc Prof Dominique Allen submission; Australian Discrimination Law Experts Group submission. 239 These recommendations align with recommendation 17.2 made by the Building Belonging Review. 240 Australian Human Rights Commission, Disability Standards (Web Page) https://humanrights.gov.au/our-work/disability-rights/disability-standards. 241 Disability Discrimination Act 1992 (Cth) s 34.

220 As above, the Commission recommends that a positive duty to eliminate discrimination be incorporated into the DDA. This positive duty would have the effect of requiring duty holders to comply with a Disability Standard. Providing, as recommended above, an appropriate regulatory enforcement framework to support the positive duty would assist to alleviate the burden on potential complainants by ensuring the AHRC has adequate powers to promote and enforce compliance with the positive duty. This should include powers for the AHRC to, following an inquiry into systemic discrimination, enter into enforceable undertakings, issue compliance notices, and seek civil penalties.242 The Commission suggests that it be made clear in guidance materials or via legislation that these powers may be used in respect of the enforcement of compliance with Disability Standards (RECOMMENDATION 43).243

242 This recommendation broadly aligns with recommendation 15 made by the Building Belonging Review. 243 This recommendation broadly aligns with recommendation 15 made by the Building Belonging Review.