NDIA Accountability Project

Protecting people with disability from vilification and harassment

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napwha

national association of people with hiv australia

HIV/AIDS Legal Centre

Joint Submissions to the Attorney General Department’s Review of the Disability Discrimination Act 1992 (Cth)

October 2025

HIV/AIDS Legal Centre (HALC)

National Association of People with HIV Australia (NAPWHA)

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14 November 2025

Attorney General’s Department
3-5 National Circuit
Barton ACT 2600

Submitted via electronic upload

To the Attorney General’s Department

Submission to the Review of the Disability Discrimination Act 1992 (Cth)

Thank you for the opportunity to contribute to the review of the Disability Discrimination Act 1992 (Cth) (‘DDA’).

The HIV/AIDS Legal Centre (HALC) is the only not-for-profit, specialist community legal centre of its kind in Australia. HALC provides free and comprehensive legal assistance to people in NSW with HIV or hepatitis-related legal matters and undertake community legal education and law reform activity in areas relating to HIV and hepatitis.

The National Association of People with HIV Australia (NAPWHA) is the national peak, non-government organisation representing community-based groups of people living with HIV across Australia. NAPWHA’s membership of national networks and state-based organisations reflects the diverse make-up of the HIV-positive community and enables NAPWHA to confidently represent the positive voice in Australia.

Our submission focuses on the aspects of the DDA that most significantly impact the communities we serve.

The Disability Discrimination Act 1977 (NSW) has been a vital piece of legislation in protecting and empowering the community of people living with HIV. However, there are areas where, in our view, reform is long overdue. We are hopeful that meaningful reform will strengthen the protections available for those living with HIV who continue to experience stigma and discrimination.

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Contents

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Consultation Question 1 - How should disability be defined in the Disability Discrimination Act?

Medical Condition or Health Status

Discrimination against people living with HIV and people with stigmatised health conditions is often socially driven, rooted not in the medical realities of the condition but in moral judgments, stigma, and misinformation. This type of discrimination is distinct from that experienced by people with disabilities and is not appropriately or adequately recognised under the current DDA definition of disability.1

We acknowledge that reform on this issue comes with challenges stemming from the fact that unlike the states and territories, the Commonwealth does not have a single anti-discrimination Act. Instead, there are separate legislation which individually proscribe discrimination based on age, sex, race, and disability.

While the DDA remains the more appropriate legislation to protect people living with HIV and hepatitis from discrimination, we propose that the DDA should cover discrimination against our communities not under the umbrella term of disability but on the basis of a separate and distinct protected attribute of “medical condition” or, in the alternative, “health status.” This should encompass:

  • Mental health conditions
  • Bloodborne viruses, including HIV, hepatitis B and C.
  • Sexually transmissible infections (STIs), and
  • Use or past use of alcohol and other drugs irrespective of their level of use.

There is precedent for the inclusion of this protected attribute under international human rights law, with health status recognised as a protected attribute in its own right,2 which includes mental health status. For our communities, several issues emerge due to the DDA’s classification of medical conditions, like HIV, within the definition of disability:

  • The majority of people living with HIV in Australia do not consider their HIV status to be a ‘disability’ as their status would not affect their capacity to participate in society or the workforce or perform daily living functions.
  • Decisionmakers applying these laws and policy also may not consider people with HIV to have disability and may not recognise that anti-discrimination laws cover people with HIV.
  • Many people experiencing mental health issues, or who are discriminated against based on alcohol and other drug use, do not identify themselves as living with ‘disability’. The wider community also do not recognise them as living with a ‘disability’. As such, they may not meet diagnostic criteria or have experiences which

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are episodic by nature and therefore may not be protected under the current definition of disability in the ADA.3

  • It is not clear whether substance use (or ‘abuse’, including substance misuse disorder) is covered by the current definition of ‘disability’ in the DDA. In addition, people who do not experience problematic use of alcohol or drugs are also often subject to discrimination because of their use of alcohol or drugs. Therefore, non-problematic use of alcohol or drugs does not fall under the definition of ‘disability’.

In HALC and NAPWHA’s experience, people with HIV, healthcare workers, community organisations and other stakeholders working in the HIV sector are often surprised to discover that people living with HIV are consider to have a ‘disability’ in anti-discrimination legislation. When asked the question ‘do you have a disability?,’ it is rare for people living with HIV to answer ‘yes’.

It is therefore inappropriate for people living with HIV and others with stigmatised health conditions to be protected by a narrow definition of ‘disability’, because people with bloodborne viruses rarely share the lived experience of people with disability. The disability framework relies on deficit-based, biomedical models that do not reflect the lived experience of the communities we represent.

This perspective reflects that the lived experience of managing a stigmatised medical condition does not necessarily align with conceptions of disability. In recognition of these views and the evolving realities of living with HIV after treatments became widely available, the national peak body, NAPWHA, withdrew from the Australian Federation of Disability Organisations (AFDO) in 2012. This withdrawal underscores the importance of respecting and accurately representing the self-identification of people living with HIV and other stigmatised medical conditions.

People with bloodborne viruses often face discrimination not because of perceived and/or actual impairment or functional limitation, but due to moral judgement, assumptions about personal behaviour, sexuality, drug use, or misconceived myths about transmission risks. We submit that including ‘medical conditions’ as a distinct protected attribute within the DDA would improve public understanding of what qualifies as a disability under the Act and ensure that conditions commonly viewed as health issues, such as bloodborne viruses, are clearly recognised and protected.

Not Irrelevant Medical Condition or Irrelevant Medical Record

There is concern in community about the use of terms like ‘irrelevant medical record’ or ‘irrelevant medical condition’ in anti-discrimination legislation, rather than more straightforward terms like ‘health status’ or ‘medical condition’. These terms were

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introduced in recent reforms passed by Queensland Parliament and were raised as a possibility in the Issues Paper.4

We believe adopting the term irrelevant medical condition or irrelevant medical record would undermine the objectives of the DDA.

The risk of promoting stigma

The use of the term ‘irrelevant’ could inadvertently increase stigma around HIV and other stigmatised medical conditions, like mental illness. Because ‘relevance’ is an ambiguous term, employers or service providers might rely on biased views or misconceptions, like false beliefs about HIV transmission, when deciding what is relevant.

In our experience, employers or service providers that discriminate against a person based on HIV status, for example, often do so because they falsely believe that person poses a risk of onward transmission. These parties may view HIV status as ‘relevant’ to workplace safety, despite scientific evidence to the contrary. This undermines the intent of the legislation to protect against discrimination and allows stigma to masquerade as risk management, reducing the DDA’s effectiveness for people living with HIV.

The term ‘irrelevant medical record’ only refers to past medical history and does not adequately cover current health attributes which are often the basis of discrimination, like perceived risk of disease transmission, or visible symptoms of a health condition.

An unnecessary inclusion

The term ‘irrelevant’ does not exist in relation to any disabilities as currently defined in the DDA.5 It would be confusing and inconsistent for it to be included in relation to medical conditions or medical records without any real need.

With that in mind, the DDA’s existing exceptions to discrimination eliminate the need for the term ‘irrelevant’. The DDA already includes exceptions that allow for discrimination where a person cannot perform the inherent requirements of a job due to a health condition or disability.6 This ensures that legitimate concerns about relevance are addressed without the need to qualify the protected attribute itself.

If a health condition or disability is relevant, it can already be considered under these exceptions as appropriate.

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An excessive onus of proof on the applicant/complainant

Including the term ‘irrelevant’ would also impose an undue burden on individuals who experience discrimination based on their medical condition or health status. Unlike other forms of disability, these individuals would have to prove their condition was irrelevant to the discriminatory action, a potentially complex and onerous task. This would create an inequitable standard of protection, effectively establishing a tiered system where some forms of discrimination are harder to challenge than others. As a result, the new definition of disability may become functionally redundant, forcing individuals to rely on other aspects of the definition of disability, even when they do not identify as having a disability, thereby undermining the intent and effectiveness of the reform.

Recommendation: We submit that, in updating definitions of disability under the DDA, language should include reference to ‘medical condition’ or, in the alternative, ‘health status’.

Consultation Question 2 - Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes?

The DDA should protect against intersectional discrimination, recognising the practical reality that discrimination can be based on a combination of protected attributes, rather than just one in isolation. In the ACT, discrimination is now defined as treating someone unfavourably because the person has one or more protected attributes.7 The Australian Government should adopt a comparable approach.

People living with HIV can face exclusion from cultural or religious communities, or from LGBTQIA+ communities because of their HIV status. Treating protected attributes in isolation from each other further entrenches this exclusion, reinforcing prejudice. If intersectional discrimination is not recognised, unique and overlapping forms of discrimination may be missed, and decision-makers may be unable to consider relevant evidence relating to protected attributes other than the attribute formally relied upon in the claim.

Recommendation: The DDA should expressly provide that discrimination can occur on the basis of one or more attributes or a combination of attributes.

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Consultation 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?

Benefits of the Unfavourable Treatment Test

Currently, a person alleging discrimination must satisfy the ‘comparator test’. That is, prove they were, or would have been, treated differently (as in, less favourably) compared to another person without that attribute.

There are strong benefits to adopting an ‘unfavourable treatment’ test instead. This approach focuses on the consequences of the treatment, is better suited to addressing intersectional discrimination, and provides a simpler, more appropriately focused framework. The unfavourable treatment test is already in place in Victoria and the ACT, and Queensland has passed laws introducing it. Adopting this test at the federal level would align the DDA with these reforms and reflect the broader trend in Australian anti-discrimination law toward this simpler, more effective approach.

The exercise of comparing whether someone with a protected attribute was treated less favourably than another person without that attribute can be arbitrary, confusing and unhelpful in answering the ultimate question: was someone discriminated against because of their disability?

We agree with the Issues Paper regarding the difficulties of developing hypotheticals that apply to the actual context of the treatment given or proposed to be given to a person.8 It can lead to technical debates. Many of these complexities were highlighted in Purvis v New South Wales.9 The applicant was a student whose violent behaviour was linked to his disability. The High Court decided that the appropriate comparator was a person without a disability who behaved in the same violent manner as the applicant. That is, the manifestations of the disability were ascribed to the comparator. Because the applicant was treated the same as that person (the comparator), the Court found that no unlawful discrimination occurred. This reasoning effectively disregarded the role of the disability in the treatment received.

We believe that the comparator test reduces the effectiveness of the DDA and undermines the intent of the legislation. This is particularly evident in cases involving intersecting grounds of discrimination or where certain characteristics are associated with an attribute (for example, the stereotype that a male living with HIV is homosexual).

Recommendation: Replace the comparator test for direct discrimination with the unfavourable treatment test.

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Consultation Question 6: How should the burden of proof be addressed in the Disability Discrimination Act?

Any approach that does not place the full responsibility for proving direct discrimination on the applicant would significantly improve the current test. The DDA should be amended to require respondents to prove that their conduct was not discriminatory, once the applicant has established a prima facie case of direct discrimination.

Queensland’s approach offers useful guidance: the respondent will be taken to have unlawfully discriminated against the complainant if the complainant proves facts from which it could be decided, without any other explanation, that the respondent unlawfully discriminated against them.10

The difficulties of applicants proving all aspects of direct discrimination are well-established and have been acknowledged by the Federal Parliament. In the Work Health and Safety Act 2011 (Cth), the prosecution must:

  • Prove that discriminatory conduct was engaged in,
  • Prove that a circumstance existed at the time discriminatory conduct was engaged in, and
  • Adduce evidence that the conduct was engaged in for a prohibited reason.

Once these standards have been met, discrimination is presumed to be the reason for the conduct, meaning the defendant then has the burden of proving their conduct was reasonable given the circumstances.11 Federal Parliament acknowledged in the explanatory memorandum for this Bill that in determining the reasons for allegedly discriminatory conduct, the persons conducting a business or undertaking (PCBUs) are in a stronger position to show that their action or omission was reasonable, and that it would be ‘onerous to require the plaintiff in civil proceedings to prove that a refusal or failure to comply with… was unreasonable as they may not be privy to the reasons for that refusal or failure to comply.’12

We agree with this reasoning and believe it applies more broadly beyond business-owners and employers. HALC finds it onerous to require our clients to prove the respondent’s reasoning, especially when they are not privy to the respondent’s decision-making processes. Requiring applicants to produce evidence of the respondent’s intent or justification (and therefore that the less favourable conduct was because of a protected attribute) can place an unfair burden on individuals who have already experienced a disadvantage.

For example, HALC settled a discrimination matter where a homosexual person living with HIV and serious mental health concerns was removed from a venue. The client alleged this occurred because of his sexuality, as he claimed homophobic slurs were used when removing him from the venue. Yet, even after a settlement agreement was reached, the

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respondent maintained he was not discriminated against and only removed due to intoxication. This example illustrates the difficulty of proving discriminatory intent, even when the circumstances strongly suggest that a protected attribute played a role in the treatment.

Recommendation: An applicant should only have to establish a prima facie case of direct discrimination. The burden of proof should then shift to the respondent to prove, on the balance of probabilities, that their conduct was not discriminatory or was otherwise lawful.

Consultation Question 8. Should the reasonableness element in the definition of indirect discrimination be: a. removed b. retained and supplemented with a list of factors to consider c. replaced by a legitimate and proportionate test d. other Please expand on your response.

Replacing the reasonableness standard with a test that assesses whether a condition or requirement is ‘legitimate and proportionate’ would significantly strengthen the framework for addressing indirect discrimination under the DDA.

A ‘legitimate and proportionate’ test is used in the United Kingdom.13 It introduces a balancing exercise that provides clearer guidance rather than evaluating reasonableness alone. The test would allow for a more nuanced inquiry into the nature and extent of the impact on the affected group, and whether that impact is justified by a legitimate aim. This includes weighing the necessity and effectiveness of the condition against the harm it may cause.

The existing ‘reasonableness’ test under the DDA is undefined and open to subjective interpretation, which can lead to inconsistent outcomes and insufficient protection for marginalised groups. This ambiguity is particularly problematic in the context of HIV-related stigma, where inaccurate assumptions about risk and safety can influence what is deemed ‘reasonable’ without proper scrutiny.

Outlining factors to be considered in determining whether the discrimination is ‘legitimate and proportionate’ would:

  • Promote predictable outcomes, including consistency with other jurisdictions (e.g. Victoria and the ACT).14
  • Encourage duty-holders to proactively consider less discriminatory alternatives.
  • Support fairer outcomes by requiring consideration of both the feasibility of overcoming the disadvantage for the affected person and the feasibility of

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implementing alternatives, shifting the burden of problem-solving from the individual alone to both parties.

  • Encourage consultation with affected communities.
  • Provide clearer guidance to applicants, representatives, courts and tribunals, improving the accessibility and transparency of the DDA.

Recommendation: The test for indirect discrimination should consider how “legitimate and proportionate” the condition or requirement is, not just whether it was reasonable, requiring consideration of:

  • The nature and extent of the disadvantage caused;
  • The feasibility of overcoming or mitigating the disadvantage;
  • The proportionately of the disadvantage relative to the objective of the condition or requirement;
  • Whether the alleged discriminating party considered alternatives to the condition or requirement which is causing a disadvantage, either through consultation or on their own initiative;
  • The feasibility and cost of alternative conditions or requirements;
  • The financial circumstances of the duty-holder imposing, or proposing to impose, the condition or requirement; and
  • Whether reasonable adjustments or reasonable accommodations could reduce the disadvantage.

Consultation 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?

We submit that the DDA should include a standalone positive obligation to provide adjustments, unless it can be shown that those adjustments would cause ‘unjustifiable hardship’. This is approach mirrors the Anti-Discrimination Act 1992 (NT),15 and aligns with the requirements, framework and language of the Convention on the Rights of Persons with Disabilities (CRPD).16 It ensures the duty is proportionate and tailored to the size, resources and context of each organisation.

This approach would address concerns raised by The Disability Royal Commission, which noted a misconception that a ‘reasonable adjustment’ must be both reasonable and not

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cause unjustifiable hardship.17 In reality, ‘reasonable adjustments’ encompass all adjustments up until the point of unjustifiable hardship and reasonableness is not independently examined.18 Clarifying this in the DDA would remove ambiguity, strengthen compliance, and improve protections for people with disability.

Recommendation: The DDA should include a duty to provide adjustments.

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

The DDA currently provides that duty holders are not required to make reasonable adjustments for a person with a disability if those adjustments would impose unjustifiable hardship. While all relevant circumstances must be considered when assessing hardship,19 there is no requirement for consultation or exploration of alternative options. In practice, we often see discrimination occur because of ignorance or a lack of meaningful consultation with the person affected.

Strengthening the list of circumstances that must be considered, and explicitly requiring consultation, would:

  • Better balance the needs of duty holders and individuals at risk of discrimination.
  • Align with the recommendations of the Disability Royal Commission, which highlighted the importance of collaborative decision-making and transparency in adjustment processes.20
  • Encourage early resolution of disputes by creating opportunities to discuss the need for adjustments and negotiate practical solutions.
  • Enable alternative options to be explored that serve both parties’ interests, reducing the risks of litigation and fostering inclusive practice.

Recommendation: Claims of unjustifiable hardship should explicitly require consideration of:

  1. The extent of consultation with the person with disability;
  2. Alternatives available to remove or reduce the hardship; and
  3. The nature and extent of any adjustments made.

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Consultation Question 27. How could the Disability Discrimination Act be amended to protect people with disability from offensive behaviour and/or harassment?

Areas of public life

The DDA currently prohibits harassment only in limited areas of public life: employment and work, education, and the provision of goods, services, and facilities.21 This narrow scope contrasts with broader protections found in other federal and state anti-discrimination legislation, which often extend to a wider range of public domains.

Critically, the DDA does not prohibit harassment in several key areas where people with disabilities are vulnerable to abuse or mistreatment. These include:

  • Online environments, like social media or electronic communications.
  • Sport
  • Accommodation settings
  • Administration of government laws and programs.
  • Harassment which is not between individuals, like that perpetrated by a group or company.22

This is concerning given the findings of the Disability Royal Commission of systemic abuse across a range of settings, not just employment, education, and the provision of goods, services and facilities.23

Recommendation: The DDA should prohibit harassment in all areas of public life.

The Definition of Harassment

The DDA does not currently define ‘harassment’, creating ambiguity in its interpretation and enforcement. In contrast, other federal and state legislation anti-discrimination laws do provide definitions, using terms such as ‘humiliate’, ‘offend’ and ‘intimidate’.24

For example, section 18C of the Racial Discrimination Act 1975 (Cth) makes it unlawful to do any acts in public that are ‘reasonably likely to offend, insult, humiliate or intimidate’ another person or group of people because of their race, colour or national or ethnic origin.25 This has been held to only encompass conduct with ‘profound and serious’ effects, not ‘mere slights’.26

Adopting similar language in the DDA could therefore mitigate any concerns that the unintentional use of outdated or stigmatising language would attract liability under the DDA,

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ensuring only serious and harmful conduct is captured. A mens rea component requiring intent to offend, insult, humiliate or intimidate could help allay such concerns.

In defining harassment, the need to balance competing rights and interests will need to be considered to some extent, as has occurred in passing and implementing these other laws. The right to freedom of speech and expression must be balanced by the rights to non-discrimination.

Recommendation: The DDA should define harassment similar to the definition used in section 18C of the Racial Discrimination Act 1975 (Cth), with an additional requirement for intent:

  1. An act done in public by an individual, group or organisation
  2. That is reasonably likely to offend, insult, humiliate or intimidate another person or group of people
  3. With the intent that offend, insult, humiliate or intimidate another person or group of people.
  4. If the act was done because of the disability of the other person or some or all of the people in the group.

Consultation 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?

The Need to Protection against Vilification

The DDA prohibits disability-based discrimination in areas such as employment, education, provision of goods and services, and includes some harassment provisions in those specific contexts.27 However, there is no broad or explicit prohibition against vilification or hate speech against people with disability.28 This gap means that public acts encouraging hatred, serious contempt or ridicule (e.g. disability-based slurs, incitement, or non-workplace harassment) often fall outside the DDA’s reach. Indeed, the Issues Paper acknowledges that there is not enough protection against offensive behaviour and hate speech (also known as vilification)29 directed at people with disability. As a result, Australians with disability are vulnerable to vilifying conduct — especially in public and online spaces, absent any explicit law prohibiting such conduct.

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By contrast, other discrimination laws have long included explicit anti-vilification provisions. The Racial Discrimination Act 1975 (RDA) provides a clear example. Section 18C of the RDA makes it unlawful to perform any public act that is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate” a person or group because of their race, colour, or national/ethnic origin. In effect, this provision (introduced in 1995) targets racial hate speech and vilification in any public context (from newspapers to social media), giving racial and ethnic communities a federal civil remedy against hate-fuelled attacks. No analogous section exists in the DDA for disability — an inconsistency noted by experts and law reform bodies. This means that while a person vilified because of race can lodge a complaint under federal law, a person vilified because of disability has no equivalent avenue unless the conduct also fits within another DDA discrimination provision.

Some state and territory jurisdictions have attempted to fill the gap in for disability. The Australian Capital Territory and Tasmania expressly prohibit vilification in their anti-discrimination statutes,30 and in 2025, Victoria expanded its laws to cover vilification on the basis of disability alongside other attributes.31 Vilification laws often reflect racial vilification laws by prohibiting public acts that incite hatred, serious contempt, or ridicule against people with disability, and in some cases creates criminal offences for ‘serious vilification’.32 The patchwork of state laws and the absence of a federal disability vilification ban leave uneven protection; people with disability do not uniformly enjoy the same anti-vilification safeguards that racial minorities (or other groups) do under Australian law.

In some states and territories, this may leave people with disabilities with access only to criminal and not civil resolutions after having been vilified. People living with HIV and LGBTQ+ people have a complicated history with policing and the criminal justice system. Civil protection applying consistently alongside criminal offences would allow different avenues for those who have experienced vilification to seek justice outside the criminal justice system if desired. This is especially important for those seeking justice in relation to family or domestic settings, where criminal prosecution may be inappropriate.33

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability drew national attention to the harm caused by hate speech and vilification, detailing several accounts of people with disability enduring insults, ridicule, and threats of violence because of their disability.34 The Commission recommended that more serious and harmful conduct be covered than the existing harassment provisions.[^35]

The consequences of HIV vilification and a failure to address it include increased stigma and discrimination for key populations and flow on effects for HIV testing and treatment uptake

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which severely undermine public health efforts.35 Effectively tackling HIV vilification is therefore crucial to Australia achieving its goal of virtually ending HIV transmission in Australia by 2030.

An Incitement and Harm-Based Test

While the Disability Royal Commission recommended an incitement-based test,36 we submit that this should be complemented by a harm-based test, as recently adopted in Victoria’s 2025 reforms.

An incitement-only test places a high evidentiary burden on those who are vilified, requiring proof that others were incited,37 rather than focusing on the harm caused to the person or group targeted.

The lived experience of the groups protected by vilification provisions should be adequately captured in the legislative test for vilification. Some communities have long histories of being disproportionately impacted by stigma, harassment, vilification and other associated harms. For example, HALC commonly assists people living with HIV whose HIV status has been disclosed without consent by service providers, employers, government entities, family members and the community at large. These disclosures often result in ongoing consequences for people’s privacy, wellbeing and safety. The very real impact of vilification on these groups should be the focus in assessing claims of vilification.

Reforming the test for civil vilification to include a harm-based assessment would shift the focus to the impact of the conduct on the targeted individual or group. It could assess whether the conduct:

  • Is reasonably likely to offend, insult, humiliate, intimidate or ridicule a person with a protected attribute;38 or
  • Would be reasonably likely to be considered by a reasonable person with the protected attribute to be hateful, seriously contemptuous, or reviling or seriously ridiculing the targeted person or group.39

A harm-based test would better reflect how members of the community understand and experience vilification,40 and reduce the burden on applicants by removing the need to prove a hypothetical third-party audience’s reaction to the conduct.41 Its inclusion would

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also align with civil vilification laws in the NT, Tasmania, Victoria, and under the Racial Discrimination Act 1975 (Cth).42

We submit that if only one test were considered appropriate, a harm-based test is most suitable. However, we recommend a dual test like that recently adopted in Victoria, where the amendments will, upon commencement, provide for a harm-based test in addition to a separate incitement-based test, with both covering the same attributes.

The Victorian vilification test was adopted following extensive community consultation. It will make it unlawful to engage in public conduct either:

  • Because of a protected attribute of another person or group of persons where the conduct would, in all the circumstances, be reasonably likely to be considered by a reasonable person with the protected attribute to be hateful or seriously contemptuous of, or reviling or severely ridiculing, the other person or group of persons (the ‘harm-based’ test);43 or
  • Where the conduct ‘is likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of, another person or a group of persons on the ground of a protected attribute of that other person or group of persons (the ‘incitement-based test’).44

A dual test will ensure that both the societal impact and personal harms caused by vilification are recognised and addressed. The vilification framework would better protect vulnerable communities and reflect contemporary understandings of the lived experiences of minority groups.

Recommendation: The DDA should prohibit vilification, adopting a dual incitement and harm-based test.

Recommendation: Any exception for vilification should:

  1. Be refined to Acts which demonstrably contribute to public understandings or public welfare;
  2. Not apply in circumstances where the public act has caused demonstrable harm, including psychological distress or social exclusion; and
  3. Not apply to online content or media publications.

Recommendation: If a vilification complaint to the AHRC suggests a hate crime or other criminal offence, and the applicant consents, the matter should be referred to police.

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Multiple Reasons for Vilification

We believe vilification should also be prohibited even when someone’s disability is not the sole or dominant reason for the conduct. Such an approach reflects the reality that vilification can be layered, or intersectional, and should be unlawful even if partially motivated by other situational factors.

HALC has acted for clients in harassment and vilification matters where intersecting forms of identity interacted with their HIV status to create a unique form of vilification. One notable example was JM and JN v QL and QM [2010] NSWADT 66. A gay couple from a rural NSW town was found by the NSW Administrative Decisions Tribunal (as it then was) to have been vilified when former friends threatened them with violence at the pub and began telling town members that they had HIV and referred to them using homophobic slurs.

Recent Victorian amendments are again a useful guideline. When these amendments become operational, they will cover conduct that is engaged in for two or more reasons: where one of the reasons is a protected attribute, the conduct is taken to have been engaged in because of a protected attribute. This will apply even if the protected attribute is not the dominant or substantial reason for the conduct.45

Recommendation: Vilification should be unlawful under the DDA even if someone’s disability was not the sole or dominant reason for the conduct.

Consultation Question 31. How could the Disability Discrimination Act be amended to ensure that it covers policing?

We agree with the Issues Paper that it is not appropriate to rely on classifying police as providing a ‘service’ for policing to be covered by the DDA. Policing is often compulsory and coercive by its very nature, not a ‘service’ in the traditional sense; in government-citizen interactions, many decisions and actions are not optional, commercial or beneficial to the user. These functions have profound implications for people’s fundamental rights and dignity yet may fall outside the definition of a ‘service’.

Relying on the distinction of whether the government was providing a ‘service’ is an arbitrary and unjust way to determine whether discrimination has occurred. For example, police decisions about arrest or prosecution could escape scrutiny, leaving individuals vulnerable to discriminatory treatment in some of the most consequential areas of public life, such as after having been a victim of crime.

A compelling illustration of the risks of excluding certain government functions from anti-discrimination protections is found in the South Australian case of *McDonald v The State of

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SA* [2019] SAET 33.46 In that case, HALC represented a client in contesting a decision of the Parole Board which required him to disclose his HIV status to potential or actual employers as a condition of parole. The requirement was imposed despite expert medical advice confirming there was no relevant public health concern or risk of HIV transmission. The condition appeared to be based on stigma and discriminatory assumptions. The condition had devastating consequences for the client including being immediately rejected from at least nine jobs.

This case underscores the urgent need to ensure that all government functions, not just those deemed ‘services’, are subject to anti-discrimination protections. The matter was summarily dismissed as the Parole Board’s behaviour was not deemed to be a ‘service’. People living with HIV, and others from marginalised communities, must be protected from discriminatory treatment in all aspects of their interactions with the state, including in the criminal justice and corrections systems.

Recommendation: The DDA should apply to government functions and the administration of laws, including policing, regardless of whether those functions can be properly characterised as a ‘service’.

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

Superannuation and insurance (Section 46)

Insurance Discrimination against People Living with HIV We have significant concerns about how the superannuation and insurance exception contained in the DDA works in practice for people living with HIV.

The DDA permits insurers and superannuation providers to discriminate on the basis of disability if the discriminatory term or condition is

‘based upon actuarial or statistical data on which it is reasonable… to rely and [is] reasonable having regard to the matter of the data and other relevant factors.’47

If there is no such actuarial or statistical data available or reasonably obtainable, the discrimination needs to be reasonable having regard to ‘any other relevant factors’.48

Since the Xiros case over 25 years ago, when prognoses for HIV were poor, no court or tribunal decisions - whether involving HALC representatives or in any other publicly available cases - have provided legal clarity on how this exception applies to people living with HIV.49 In the absence of this clarity, and given the ongoing difficulties people living with HIV face in accessing life insurance products, legislative reform is critical.

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HALC has observed a wide range of approaches undertaken by insurers when people living with HIV seek out cover. This includes:

  • Instant refusal of coverage after disclosure of a person’s HIV status; or
  • Refusal after the disclosure of further medical information related to a person’s HIV status; or
  • Increased premiums, added exclusions or reduced benefits after disclosure of a person’s HIV status.50

The HIV Futures 10 report found that 14.5% of people living with HIV had experienced discrimination by insurers in the last twelve months.51 A report by the Victorian Pride Lobby ‘Worth the Risk’ found that questions asked by insurers about HIV can be stigmatising and confronting, such as questions about:

  • Engagement in anal sex without a condom outside a monogamous relationship;
  • Sex with or as a sex worker;
  • Sex (without a condom) with a person who uses recreational injected drugs; and
  • Travel to high-risk countries or sexual relations with persons who have recently come from high-risk countries.52

These questions not only stigmatise people living with HIV but also men who have sex with men, people who use drugs and sex workers. HALC clients have been asked similarly stigmatising questions that are irrelevant to the assessment of insurance risk, like how they acquired HIV.

Evaluating the Reasonableness of the Data

While the DDA refers to using actuarial and statistical data ‘on which it is reasonable…to rely’, when clients ask to see what data has been relied upon, they have consistently been denied this request. It is therefore difficult to determine why insurance companies take vastly different approaches in their assessment of insurance for people living with HIV, and how much of the data informing their decisions may now be out of date and/or based on health statistics that predate the introduction of advanced treatment options. The DDA also does not allow clients or community organisations advocating on behalf of people living with HIV to seek second opinions on the data to determine whether insurance companies are complying with the legislation. As a result, investigating whether insurance decisions are in fact based actuarial or statistical data or the reasonableness of relying on such data is a major challenge.

This lack of transparency stands in contrast to the Sex Discrimination Act 1984 (Cth), which similarly only permits sex-based discrimination in the provision of insurance if the decision is based on actuarial or statistical data from a source on which it is reasonable to rely. That Act

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requires that a provider gives the client a document containing the data or makes it available for inspection at the client’s request.53

HALC undertakes strategic litigation to challenge insurers’ reliance on the statutory exception. This can be a near impossible task as insurers are not compelled to provide the data relied upon when initially refusing coverage, or in offering insurance on less favourable terms. Typically, that strategic litigation occurs within the NSW court system, actioned under the equivalent exemption in the Anti-Discrimination Act 1977 (NSW).54 As the law stands currently, insurers are only compelled to provide the data when matters progress beyond Anti-Discrimination NSW (ADNSW) to the NSW Civil and Administrative Tribunal (NCAT).

In HALC’s experience, when this data is provided, it often suffers from significant limitations - such as being outdated, based on flawed methodology, or lacking relevance to the client’s specific circumstances and the terms of the insurance coverage they have applied for.

The insurance discrimination matters where HALC has represented clients have had very limited success in mediation at ADNSW. Insurance companies are often unwilling to engage in meaningful settlement negotiations until the matter reaches NCAT.

Recommendation: The DDA should be amended to allow proceedings involving insurance and superannuation exemptions to be commenced either at the Australian Human Rights Commission (AHRC) or directly in the Federal Court.

Recommendation: Legislate a requirement for insurers to provide detailed reasons when insurance is denied or offered on less favourable terms because of a medical condition.

Recommendation: The insurance and superannuation exception should be amended to include a non-exhaustive list of factors which provide guidance on whether it is reasonable to reply on actuarial or statistical data and other relevant factors. The list should require consideration of:

  • Whether the data is relevant to the type and terms of conditions of the policy, including its applicability to the applicant’s circumstances;
  • Whether the data is up to date;
  • Whether the data reliably indicates that the person poses an unacceptable risk to insure; and
  • Whether the insurance or superannuation company has collected sufficient information to reliably assess the person’s risk.

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Recommendation: Task the Australian Human Rights Commission with developing guidance materials about the application of insurance exceptions for people living with HIV, in collaboration with insurance industry representatives and community organisations. The materials should specify that insurance companies must:

  • Maintain records of all data relied upon in decision-making;
  • Collect adequate and relevant information from the applicants, including viral load, CD4 count, and treatment adherence;
  • Use data that is:
    • Scientifically valid, including ensuring, insofar as possible, that samples are equivalent to the applicant, in terms of age, gender, treatment status and other relevant factors.
    • Drawn from populations with similar healthcare systems, and
    • Based on adequate sample sizes; and
  • Seek and use independent professional opinions where reasonable actuarial and statistical data are not available in relation to a specific applicant.

Recommendation: Empower the AHRC to compel insurers to disclose the data they relied on for conciliations related to insurance discrimination.

Recommendation: Legislate a requirement for insurers to provide individuals that are denied life insurance coverage based on a medical condition with the option to access the actuarial and statistical data upon which the insurer is relying.

  • This could be in similar terms to what the European Court of Justice has held is required under article 22 of the European Union’s General Data Protection Regulation (GDPR): meaningful information about the logic involved in the decision-making. The amendment would not require the disclosure of complex algorithms or protected intellectual property of the insurance company or underwriter.

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Infectious diseases (Section 48)

Currently, it is not unlawful to discriminate against a person based on their disability if the disability is an infectious disease and the discrimination is reasonably necessary to protect public health.55

While this provision may have been introduced with public safety in mind, we are concerned that it contributes to a broader legislative trend that disproportionately targets stigmatised infectious diseases, particularly HIV and hepatitis B and C.56

In practice, this exception risks reinforcing inaccurate stereotypes about people living with these conditions and exaggerated misconceptions about transmissibility. It implies that individuals with infectious diseases are inherently a public health risk, despite overwhelming evidence to the contrary. For example, at the end of 2023, the Kirby Institute estimates 87% of people living with HIV in Australia had a suppressed viral load, which means HIV cannot be transmitted.57 Similarly, hepatitis C is now curable in most cases, and hepatitis B is manageable with treatment.

Importantly, we submit that this exception does not resolve any real ‘mischief’. Existing legal frameworks combine to provide adequate mechanisms where there are risks of infectious disease transmission:

  • The DDA already allows for discrimination where a person cannot perform the inherent requirements of a role due to a disability, including an infectious disease.58
  • Public Health legislation in every state and territory except the NT require people to take reasonable precautions or steps to prevent the spread of notifiable diseases.59
  • Work health and safety legislation throughout Australia have comprehensive requirements to ensure businesses and workers do not harm the health and safety of others,60 and in practice require universal precautions; standard infectious control measures like the use of PPE and safe handling of bodily fluids where infection is a concern.
  • Circumstances where people intentionally or recklessly spread an infectious disease are exceedingly rare. Where this does occur, the criminal law addresses the reckless or intentional transmission of infectious diseases.61

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We therefore see no practical justification for retaining this public health exception. It’s presence risks contributing to stigma, which itself undermines public health by discouraging testing, treatment and disclosure due to fear of discrimination.

Recommendation: The DDA should not include an exception specific to infectious diseases.

Migration (Section 52)

Section 52 of the DDA exempts any discriminatory provisions or actions under the Migration Act 1958 (Cth) and its subsidiary legislation from being considered unlawful. This exemption is far too broad and significantly undermines the purpose of the DDA.

As noted in the Issues Paper and Department of Home Affairs Policy, the section 52 exemption is in place to manage government expenditure on health care and community services and to mitigate threats to public health.62 However, its application goes far beyond these aims and results in systemic discrimination against people with disabilities and health conditions.

HALC, NAPWHA and other organisations in the HIV sector have written and advocated extensively on more inclusive migration practices for people with HIV for many years,63 as have many other organisations and experts.64 We encourage the Department to consider these views to develop its understanding of the need to reform section 52.

The Migration Health Requirement

The key discriminatory practice enabled by section 52 is the implementation of the Migration Health Requirement, a criterion to be eligible for almost every Australian visa.65 Under this requirement, visa applicants must demonstrate they are free from any disease or condition likely to require healthcare or community services, or meet the medical criteria for such services,66 where the provision of those services is likely to:

1(c)(ii) (A) result in a significant cost to the Australian community in the areas of health care and community services; or
(B) prejudice the access of an Australian citizen or permanent resident to health care or community services;

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regardless of whether the health care or community services will actually be used…°”

For people living with HIV, the critical provision is clause 1(c)(ii)(A), in bold above, which assesses whether their condition would result in a “significant cost” to the Australian community. This cost is not based on individual circumstances but on a hypothetical costing by the Medical Officer of the Commonwealth (MOC) against the Significant Cost Threshold (SCT). The SCT is set at $86,000 (as of July 2024) with only incremental increases over time.

Impact on People Living with HIV

The MOC costing is applied regardless of whether services will actually be used, ®8 and ignores the reality that even those without disabilities and health conditions may require such services.

This approach is flawed. It is based on the incorrect assumption that people with HIV will require prohibitively expensive life-long medical interventions, which may not be the case with rapid advances in medicine. And it overlooks the significant economic and social benefits that migrants bring to Australia.°?

For visas categorised under Public Interest Criterion 4005 (PIC 4005), there is no health waiver available if an applicant does not meet the health criteria because their costing is above the SCT of $86,000.

Even for visas classified under PIC 4007, where a waiver may be granted, the health waiver process is often costly and lengthy, and can be incredibly stressful and stigmatising. The ‘one fails, all fail’ rule compounds harm by denying visas to all applicants (such as all members of a family unit) if just one applicant does not meet the health requirements and no waiver is available.

A case study from HALLC illustrates the human impact of section 52. The applicant was a nurse living with HIV, an area of significant, long-term skill shortages in Australia. Although otherwise eligible for a last remaining relative visa, their HIV status meant they did not meet the health criteria. There is no waiver available for that visa. If a waiver had been available, the client had strong prospects of a successful waiver. A request for Ministerial Intervention was unsuccessful and the client to lodge a protection visa, which took around 5 years to process. During these years of uncertainty and distress, the client’s family members wellbeing declined significantly, with lifelong impacts for the family as a whole. That protection visa was eventually granted.

Even the Department of Home Affairs Review into the Migration Health Requirement and Australia’s visa Significant Cost Threshold found that:

57 Ibid PIC 4005, 4007.

58 Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626.

59 Peter Varela et al, ‘The lifetime fiscal impact of the Australian permanent migration program’ (Working Paper, The Commonwealth Treasury, 2021).

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  • The SCT, as currently defined, prevents some permanent visa applicants living with a stable and managed chronic condition from meeting the migration health requirement (finding 1);
  • The ‘average’ Australian health and community service calculation could be more comprehensively captured and better align with the MOC assessment (finding 2); and
  • Access to the migration health waiver could be more equitable across permanent skilled visa subclasses (finding 8).’°

We align with Welcoming Disability in noting that international human rights law requires any interference with the right to freedom from discrimination to have a legitimate aim, in that the interference is both proportionate and necessary.’! The arbitrary manner in which Australia’s migration system discriminates against people with disabilities and manageable health conditions does not abide by this principle of proportionality.

Recommendation: We submit that Section 52 should be narrowed. Any discriminatory provisions or actions permitted or required under the Migration Act 1958 (Cth) and its associated instruments should only be lawful where they are demonstrably necessary to:

  • Address risks to public health, or
  • Safeguard the access of Australian citizens and permanent residents to healthcare and community services that are in short supply.

Combat duties and peacekeeping services (Section 53) and Peacekeeping services by the Australian Federal Police (Section 54)

At present, actions are not unlawful discrimination if:

  • Those actions are done by the Australian Defence Force (ADF) in relation to employment, engagement or appointment of individuals for combat duties, combat-related duties, peacekeeping or support roles, ’* or
  • Those actions are done by the Australian Federal Police (AFP) in connection with the selection of individuals for peacekeeping duties. 7?

The Need for Reform

The Issues Paper states that these exemptions exist because of the ‘nature of the work’ undertaken in these roles. ’* However, we submit that such a broad exemption is unjustified and outdated.

70 Department of Home Affairs (Cth), Review into the Migration Health Requirement and Australia’s visa Significant Cost Threshold (Report, April 2024).

71 Welcoming Disability, Submission to the Attorney-General’s Department (Cth), Review of the Disability Discrimination Act 1992 (Cth) (October 2025) 8-9.

?2 Disability Discrimination Act 1992 (Cth) s 53.

73 Ibid s 54.

7” Disability Discrimination Act Review (n 4) 78.

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The exemptions fail to consider:

  • The nature of a person’s disability or health condition.
  • Whether that condition interferes with the genuine requirements of the role they are being restricted from participating in.
  • Whether discrimination could be avoided without imposing unjustifiable hardship on the ADF or AFP.

The ADF’s 2024 removal of its blanket exclusion of people living with HIV is a clear indication that reform is both possible and overdue. The ADF policy is as follows:

“Each individual is assessed on a case-by-case basis, with consideration of their response to treatment, infectiousness and overall health status. For example, an individual who is living with HIV but stable on treatment, with an undetectable viral load, normal immune function and is otherwise well (i.e. has no complications) would generally be considered suitable for most job roles in the ADF.””5

Before the ADF policy change, many individuals denied roles with the ADF due to their HIV status approached HALLC for assistance, including those in non-combat roles wherein their HIV status would not have had any tangible impact on performance. For example, a person who applied for a truck-driving role transporting goods. Such blanket exclusions are no longer ADF policy.

This shift reflects the significant advancements in HIV treatment and prevention since the introduction of the exemptions under sections 53 and 54. Similar progress has been made in relation to many other disabilities and health conditions, yet the current exemptions still permit broad and potentially unjustified discrimination. The exemptions do not consider individual circumstances where someone may be able to safely and effectively perform roles despite having a disability.

In X v Commonwealth [1999] HCA 63 at [166]-[167], one of several cases unsuccessfully challenging a dismissal of someone living with HIV from the ADF, Justice Michael Kirby described the ADF as frequently enforcing universal and discriminatory policies, wrongfully asserting that they are essential to the discharge of their mission. Justice Kirby explained that, in nations where the miliary are subject to checks and balances on power and required to review such policies, they are often found to be ‘…needlessly inflexible, unnecessary and wrong-headed’.”°

A Case-by-Case Approach to Assessing Suitability

We strongly recommend an approach that assesses an individual’s actual ability to perform the role. This would more effectively balance anti-discrimination principles with the critical operational needs of the ADF and AFP.

75 NAPWHA and HALC (2025), Statement on Australian Defence Force HIV Policy Reform, available at: <https://napwha.org.au/statement-on-australian-defence-force-hiv-policy-reform/>.

76 X v Commonwealth (1999) 200 CLR 177, 232 [166]-[167].

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Reform should involve recasting the relationship between ADF members and the ADF as an employer-employee relationship, which is not currently the case. ”7

Within both the ADF and AFP, exemptions should mirror those available to all employers, where discrimination may be lawful if:

  1. An employee does not meet the inherent requirements of the job or
  2. Avoiding the discrimination would cause unjustifiable hardship. ’8

This approach is consistent with other high-risk roles, such as healthcare and emergency services, where these two exemptions are sufficient to balance safety and equality. It would allow necessary discrimination for operational effectiveness or safety, but only where reasonable and proportionate.

The reform would allow for discrimination which is necessary to ensure operational effectiveness or safety, and which is reasonable and proportionate in the circumstances of the role the individual is undertaking.

Any exception applicable to the ADF and AFP should not be based on the mere existence of a disability but rather linked directly to an individual’s ability to perform a job.

Recommendation: Sections 53 and 54 of the DDA should be repealed. In their place, only the general exceptions under section 21A (inherent requirements of the role) and section 21B (unjustifiable hardship) should apply to the Australian Defence Force (ADF) and Australian Federal Police (AFP).

We again thank you for your time and invitation to comment on this important piece of legislation. If additional information or citations in relation to this submission are required, please feel free to contact redacted Strategic Policy Lawyer at the HIV/AIDS Legal Centre on redacted or redacted.

Yours,

redacted

redacted

Principal Solicitor

HALC

Executive Director

NAPWHA

77 Cv Commonwealth of Australia (2015) 234 FCR 81. .

78 Disability Discrimination Act 1992 (Cth) ss 21A and 21B.

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Footnotes

  1. Disability Discrimination Act 1992 (Cth) s 4 (‘DDA’).\ ↩

  2. Claire Brolan, Submission to Queensland Human Rights Commission, Review of Queensland’s Anti-Discrimination Act 1991 (28 February 2022) 5. Also see Committee on Economic, Social and Cultural Rights, General Comment No 14: The Right to the Highest Attainable Standard of Health (Art 12 of the International Covenant on Economic, Social and Cultural Rights), 22nd sess, UN Doc E/C.12/2000/4 (11 August 2000) 6 [18]. ↩

  3. Queensland Human Rights Commission, Building Belonging: Review of Queensland’s Anti-Discrimination Act 1991 (Report, July 2022) 267, citing Queensland Mental Health Commission, Submission to Queensland Human Rights Commission, Review of Queensland’s Anti-Discrimination Act 1991 (March 2022) 7. ↩

  4. Attorney-General’s Department (Cth), Disability Discrimination Act Review (Issues Paper, September 2025) 25 (‘Disability Discrimination Act Review’).\ ↩

  5. Disability Discrimination Act 1992 (Cth) s 4.\ ↩

  6. Disability Discrimination Act 1992 (Cth) s 21A. ↩

  7. Discrimination Act 1991 (ACT) s 8(2). ↩

  8. Disability Discrimination Act Review (n 4) 28.\ ↩

  9. Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92. ↩

  10. Anti-Discrimination Act 1991 (Qld) s 204.\ ↩

  11. Disability Discrimination Act 1992 (Cth) s 6(4).\ ↩

  12. Explanatory Memorandum, Work Health and Safety Bill 2011 (Cth) [408]. ↩

  13. Equality Act 2010 (UK) s 19(d).\ ↩

  14. Equal Opportunity Act 2010 (Vic) s 9(3). ↩

  15. Anti-Discrimination Act 1992 (NT) s 24.\ ↩

  16. Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008). ↩

  17. Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, September 2023) vol 4, 306-308 (‘Disability Royal Commission’).\ ↩

  18. Watts v Australian Postal Corporation (2014) 222 FCR 220, 225 [16].\ ↩

  19. Disability Discrimination Act 1992 (Cth) s 11(1).\ ↩

  20. Disability Royal Commission (n 17). ↩

  21. Disability Discrimination Act 1992 (Cth) ss 35-39.\ ↩

  22. Disability Royal Commission (n 17) 316-327.\ ↩

  23. Ibid.\ ↩

  24. Anti-Discrimination Act 1977 (NSW) s 22A; Equal Opportunity Act 2010 (Vic) s 92; Equal Opportunity Act 1984 (SA) s 87(9)(a); Equal Opportunity Act 1984 (WA) ss 24-26,49A–49C; Anti-Discrimination Act 1991 (Qld) s 119; Anti-Discrimination Act 1992 (NT) s 22; Anti-Discrimination Act 1998 (Tas) s 17; Discrimination Act 1991 (ACT) s 58.\ ↩

  25. Racial Discrimination Act 1975 (Cth) s 18C.\ ↩

  26. Prior v Queensland University of Technology & Ors [2016] FCCA 2853, 2864 [30]. ↩

  27. See Disability Discrimination Act 1992 (Cth) Pt 2, Div 3.\ ↩

  28. Ibid.\ ↩

  29. Disability Discrimination Act Review (n 4) 66. ↩

  30. Discrimination Act 1991 (ACT) s 67A; Anti-Discrimination Act 1998 (Tas) s 17(1).\ ↩

  31. Justice Legislation Amendment (Anti-Vilification and Social Cohesion) Act 2025 (Vic) (‘Anti-vilification Act’).\ ↩

  32. See generally ACON and HALC, Submission No SVO8 to NSW Law Reform Commission, Review of the effectiveness of section 93Z of the Crimes Act 1900 (19 April 2024) https://lawreform.nsw.gov.au/documents/Current-projects/s93z/prelim-subs/SVO8_-_ACON_and_HALC.pdf/.\ ↩

  33. Disability Royal Commission (n 17) 19.\ ↩

  34. Ibid 206-207. ↩

  35. Bradley E lott et al, ‘The impact of stigma on HIV testing decisions for gay, bisexual, queer and other men who have sex with men: a qualitative study’ (2022) 22(1) BMC Public Health 471.\ ↩

  36. Disability Royal Commission (n 17) 206-207.\ ↩

  37. Although proof of actual incitement in the relevant audience is not typically necessary.\ ↩

  38. See e.g., Racial Discrimination Act 1975 (Cth) s 18(1)(a); Anti-Discrimination Act 1988 (Tas) s 17(1).\ ↩

  39. See e.g., Legislative Assembly Legal and Social Issues Committee, Parliament of Victoria, Inquiry into anti-vilification protections (Report, March 2021), rec 10 (‘Inquiry into anti-vilification protections’); Anti-Vilification Act (n 31), inserting Equal Opportunity Act 2010 (Vic) s 102D(1)(b) (uncommenced).\ ↩

  40. Inquiry into anti-vilification protections (n 39) rec 9, 119.\ ↩

  41. Ibid; Explanatory Notes, Respect at Work and Other Matters Amendment Bill 2024 (Qld) 11; Queensland Parliament Legal Affairs and Safety Committee, Inquiry into Serious Vilification and Hate Crimes (Report No 22,2022) 45. ↩

  42. Racial Discrimination Act 1975 (Cth) s 18C(1)(a); Anti-Discrimination Act 1992 (NT) s 20A(1)(a); Anti-Discrimination Act 1998 (Tas) s 17(1); Equal Opportunity Act 2010 (Vic) s 102D(1)(b) (not yet commenced).\ ↩

  43. Anti-Vilification Act (n 31) s 9, inserting Equal Opportunity Act 2010 (Vic) s 102D(1) (uncommenced).\ ↩

  44. Ibid s 9, inserting Equal Opportunity Act 2010 (Vic) s 102E (uncommenced). ↩

  45. Ibid. ↩

  46. McDonald v The State of SA [2019] SAET 33 (28 February 2019) <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SAET/2019/33.html?context=1;query=McDonald:mask path=au/cases/sa/SAET>.\ ↩

  47. Disability Discrimination Act 1992 (Cth) s 48.\ ↩

  48. Ibid.\ ↩

  49. Xiros v Fortis Life Assurance Ltd [2001] FMCA 15 [17]. ↩

  50. Whilst HALC has not assisted anyone with hepatitis C who has experienced insurance discrimination, there is evidence of such discrimination occurring: Sean Mulcahy et al. ‘Insurance Discrimination and Hepatitis C: Recent Developments and the Need for Reforms’ (2022) 32(2) Insurance Law Journal 93.\ ↩

  51. Thomas Norman et al, HIV Futures 10: Quality of Life among People Living with HIV in Australia (Report, December 2022) 34 https://www.latrobe.edu.au/arcshs/work/hiv-futures-10.\ ↩

  52. Victorian Pride Lobby, Worth the Risk: LGBTIQA+ experiences with insurance providers (Report, 2022) 16. ↩

  53. Sex Discrimination Act 1984 (Cth) s 41.\ ↩

  54. Anti-Discrimination Act 1977 (NSW) s 49Q(a). ↩

  55. Disability Discrimination Act 1992 (Cth) s 48.\ ↩

  56. See, e.g., NSW Ombudsman, Mandatory Disease Testing in NSW: Monitoring the Operation and Administration of the Mandatory Disease Testing Act 2021 (Report to Parliament, February 2025).\ ↩

  57. Kirby Institute, University of New South Wales, HIV, viral hepatitis and sexually transmissible infections in Australia: Annual surveillance report 2024 (Report, 2024) 6.\ ↩

  58. Disability Discrimination Act 1992 (Cth) s 21A.\ ↩

  59. See, e.g., Public Health Act 2010 (NSW) s 79. These are category 1 or 2 notifiable diseases, and can be updated as needed through statutory instruments.\ ↩

  60. See, e.g., Work, Health and Safety Act 2011 (NSW) ss 19, 28, 17, 19.\ ↩

  61. See, e.g., Crimes Act 1900 (NSW) s 35. ↩

  62. Department of Home Affairs (Cth), Policy — Migration Regulations —Sch 4/4005—4007 — The Health Requirement (Policy Statement).\ ↩

  63. See especially Health Equity Matters, HALC, NAPWHA and ASHM, Submission to the Department of Home Affairs, Public Consultation for the Visa Significant Cost Threshold Review (17 November 2023) https://www.homeaffairs.gov.au/reports-and-pubs/PDFs/australias-migration-health-requirement-review-published-submissions/health-equity-matters-halc-napwha-ashm.pdf; ‘, After a shock diagnosis, Carlos was granted an Australian visa only after an intrusive process’ SBS Spanish (Special Broadcasting Service, 6 October 2023). https://www.sbs.com.au/language/spanish/en/podcast-episode/after-a-shock-diagnosis-carlos-was-granted-an-australian-visa-only-after-an-intrusive-process/e89zxn3zf.\ ↩

  64. See, e.g., Animesh Ghimire, ‘The Human Cost of Exclusion: Australia’s Health-Based Visa Restrictions’ (2025) 30(1) Australian Journal of Human Rights 124; Welcoming Disability (Web Page) https://www.welcomingdisability.com/.\ ↩

  65. Migration Regulations 1994 (Cth) sch 4.\ ↩

  66. Ibid PIC 4003 (1)(c)(i). ↩