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Disability Discrimination Act 1992 Review ACCI Submission

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Disability Discrimination Act 1992 Review

ACCI Submission 14 November 2025

Australian Chamber of Commerce and Industry

Working for business. Working for Australia.

Telephone redacted | Email redacted | Website www.acci.com.au

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Canberra Office

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ABN 85 008 391 795

© Australian Chamber of Commerce and Industry 2023

This work is copyright. No part of this publication may be reproduced or used in any way without acknowledgement to the Australian Chamber of Commerce and Industry.

Disclaimers & Acknowledgements

The Australian Chamber of Commerce and Industry (ACCI) has taken reasonable care in publishing the information contained in this publication but does not guarantee that the information is complete, accurate or current. In particular, ACCI is not responsible for the accuracy of information that has been provided by other parties. The information in this publication is not intended to be used as the basis for making any investment decision and must not be relied upon as investment advice. To the maximum extent permitted by law, ACCI disclaims all liability (including liability in negligence) to any person arising out of use or reliance on the information contained in this publication including for loss or damage which you or anyone else might suffer as a result of that use or reliance.

Introduction

  1. On 29 September 2023, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) published its final report containing 15 recommendations relating to the Disability Discrimination Act 1992 (DDA). On 31 July 2024, the Australian Government published its response to those recommendations and committed to undertake a review of the DDA. On 1 August 2025, the Attorney-General’s Department opened consultations allowing for interested parties to respond to the Issues Paper pertaining to the DDA Review. The Australian Chamber of Commerce and Industry (ACCI) welcomes the opportunity to respond to the Issues Paper.

  2. Discrimination on the basis of disability is unacceptable, with one-in-ten people over 15 years of age with a disability reporting that they have experienced discrimination. Young people with a disability appear to be disproportionately impacted, with one-in-five people with a disability aged between 15 and 34 reporting they have experienced discrimination. Unfortunately, disability discrimination does occur in Australian workplaces. ACCI supports steps that help ensure Australian workplaces are free of disability discrimination.

  3. To that end, ACCI will focus its response to the Issues Paper on matters as they relate to employment, although notes that many of the proposed areas of change will have a direct impact on employment matters. An initial observation is that the Issues Paper is expansive and requires respondents to consider a significant number of issues, potentially acting as a barrier to meaningful engagement. ACCI’s preliminary recommendation is that further targeted consultation will be required prior to any consideration of legislative change. To that end, ACCI reserves the right to depart from positions advanced in these submissions pending any proposed or actual changes that arise from this review.

  4. ACCI’s overarching position is that any proposed changes to the DDA with respect to employment arising out of this review ought to be proportionate, data- and evidence-based, have a reasonable and practical application, and subject to further targeted consultation. Any proposed changes ought to demonstrably work to reduce instances of disability discrimination, rather than impose duplicative regulations, or regulations that are disproportionate to the actions they aim to negate.

  5. It is important to acknowledge that additional regulatory obligations can place substantial compliance burdens on businesses. To thoroughly assess this impact, a comprehensive regulatory impact statement is prepared, outlining the costs incurred by businesses of various sectors and sizes. According to ACCI’s Small Business Conditions Report, 61% of small businesses (with fewer than 25 employees) spend over $20,000 annually on compliance-related expenses.1

  6. ACCI notes a specific omission in the Issues Paper concerning the National Disability Insurance Scheme (NDIS). The relationship between the DDA and the NDIS is an important factor to consider. For instance, certain adjustments under the DDA may involve components funded by the NDIS. Additionally, challenges in NDIS service delivery may be relevant when evaluating anecdotal evidence. While ACCI recognises that the NDIS does not apply to all individuals with a disability, its consideration remains pertinent to this Review.

1 ACCI, Small Business Conditions Report, 10 November 2025, pg 15, Big stress in small business: New survey.

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Part 1 – Understandings of disability and disability discrimination

Definition of ‘Disability’

  1. ACCI does not advance a proposal to change the definition of disability at this time. If the definition of disability does change as a result of the DDA Review, it is ACCI’s position that clear guidance on any change is developed and is accessible for businesses. Education around what the definition of disability encompasses will be critical for businesses to successfully prevent discrimination in the workplace.

Amending the definition of direct discrimination

  1. ACCI acknowledges that demonstrating the comparator test may present challenges, particularly when an appropriate comparison of treatment is unavailable or unknown to individuals with disabilities. Should amendments to the DDA occur, ACCI emphasises the continued necessity for comprehensive education and clear guidance to facilitate understanding of the legal requirements associated with the test.

  2. ACCI expresses significant concerns regarding the burden of proof and the potential reversal of the onus as proposed in the Issues Paper. Of particular relevance, on 19 September 2024, Parliament enacted the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023. This legislation prevents respondents from being awarded costs even when they have successfully defended their case. Reversing the onus would require a respondent to defend claims that were not initiated by them; moreover, after incurring these legal expenses, they would be unable to recover such costs unless they undertook further steps to demonstrate that the claim was vexatious or without reasonable cause.

  3. It is neither appropriate nor equitable to require a respondent to assume full responsibility and bear all costs associated with a claim brought against them if they have successfully defended their case.

  4. ACCI further observes that the Issues Paper references the Fair Work Act 2009 (FW Act) as an instance where reversal of onus has been applied. ACCI notes that the scope of the DDA extends considerably beyond employment relationships and asserts that adopting the FW Act’s standard within the DDA is not appropriate. Further, ACCI would reference recent comments made by Justice Hatcher, President of the Fair Work Commission (FWC), relating to the surge in general protections claims over the last five years.2 Justice Hatcher is quoted as having said *“this is unsustainable within our current operational, performance and funding structure”*3 and that the FWC was “not helping anybody, particularly persons with meritorious claims, if our processes are slowed down and clogged up dealing with claims that are completely unmeritorious and should never have been filed in the first place”.4 In the 2024-25 Annual Report, the FWC reported

2 See “FWC confronts “massive” workload surge”, Workplace Express, 10 October 2025, FWC confronts “massive” workload surge; David Marin-Guzman, “A huge surge in dismissal claims is swamping the system”, The Australian Financial Review, 23 October 2025, Fair Work Commission president Adam Hatcher warns of unsustainable unlawful dismissal claim workload.

3 David Marin-Guzman, “A huge surge in dismissal claims is swamping the system”, The Australian Financial Review, 23 October 2025, Fair Work Commission president Adam Hatcher warns of unsustainable unlawful dismissal claim workload.

4 “FWC confronts “massive” workload surge”, Workplace Express, 10 October 2025, FWC confronts “massive” workload surge.

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receiving 6,209 general protections claims involving dismissal and 1,737 other general protections claims,5 which is a marked increase on the five year average. To ensure the efficient performance of adjudicative bodies, and to ensure that claims are heard in a timely manner thereby preserving access to justice, the reversal of the onus of proof should not be imported into the DDA without substantial evidentiary support.

  1. The Issues Paper refers to the Equality Act 2010 (UK) as a potential model for consideration. Under this Act, applicants are required to establish a prima facie case of discrimination. If successful, the burden of proof shifts to the respondent, who is then presumed to have engaged in discriminatory conduct and must demonstrate otherwise. Noting ACCI does not support reversing the onus of proof, it seeks to be consulted on any further proposals to amend DDA that would impact the burden of proof.

Amending the definition of indirect discrimination

  1. ACCI does not endorse eliminating the reasonableness test, however, is open to the suggestion of supplementing the test with a non-exhaustive list of factors for evaluating the reasonableness of an action would benefit all parties involved.

  2. The reasonableness test must not be conflated with the unjustifiable hardship defence. Firstly, the reasonableness test is included as an element relating to indirect discrimination. That is to say, where an action is reasonable, no indirect discrimination has occurred. At the point of applying the defence of unjustifiable hardship, the wording of the DDA stipulates that discrimination has occurred, but that it is not unlawful. ACCI emphasizes the necessity of distinguishing between circumstances in which discrimination is present and those in which it is absent.

  3. ACCI is not opposed to the removal of the compliance element from the definition of indirect discrimination and agrees that it adds unnecessary complexity for all parties.

5 Fair Work Commission Annual Report 2024-25, Annual Report 2024-25.

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Part 2 – Positive duty to eliminate discrimination

  1. The Issues Paper proposes to introduce a positive duty to eliminate disability discrimination into the DDA, similar to that which has been introduced into the Sex Discrimination Act 1984 (the SDA).

  2. ACCI urges the Attorney-General’s Department to thoroughly examine the extensive layers of regulation that already exists for employers. Employers are required under workplace health and safety laws to ensure they provide a safe workplace for employees. Section 19 of the Model Work Health and Safety Bill establishes the primary duty of care:

19 Primary duty of care

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a) the provision and maintenance of a work environment without risks to health and safety; and

(b) the provision and maintenance of safe plant and structures; and

(c) the provision and maintenance of safe systems of work; and

(d) the safe use, handling and storage of plant, structures and substances; and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

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(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.6

  1. The Model Code of Practice for managing psychosocial hazards at work explicitly recognises discrimination as a psychosocial hazard within the workplace.7 It is widely accepted that disability discrimination constitutes such a hazard and falls under the scope of the primary duty. This primary duty imposes an obligation on employers to ensure, so far as is reasonably practicable, that workplaces are free from risks to health and safety. In practice, the primary duty of care acts in the same way as the positive duty.

  2. Furthermore, the DDA at section 123 holds employers vicariously liable for acts of disability discrimination committed by a director, employee or agent. To avoid liability, a business must demonstrate that it took “reasonable precautions and exercised due diligence to avoid the conduct”.8

  3. The Issues Paper notes that the Disability Royal Commission advocates for a positive duty consistent with the SDA. In its response to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, ACCI articulates concerns at the proposed language that employers and persons conducting a business or undertaking (PCBUs) would be required to take measures to eliminate “as far as possible” conduct amounting to disability discrimination. ACCI contended that the nomenclature was not consistent with duties that already existed and would create an additional layer of confusion and regulation for business.9

  4. The Disability Royal Commission released its final report in September 2023, while the Australian Human Rights Commission (AHRC) began exercising its new powers in December 2023. Consequently, the recommendations in the final report did not take into account the effects of the positive duty under the SDA.

  5. The Issues Paper acknowledges the presence of positive duties within both State and Territory legislation, as well as in international contexts. However, it does not offer a robust evidentiary foundation to support the incorporation of a positive duty into the DDA. For instance, the paper could have provided evidence regarding the impact of positive duties in existing jurisdictions on the reduction of relevant discrimination.

  6. Business often reports that duplicative regulations lead to confusion and significant time investments. Certainly, the Government is well aware of the burden of unnecessary regulation, having committed after the Economic Reform Roundtable to a “tell us once” principle which would have the effect of not requiring the same information be provided to regulators for different purposes, in addition to a general commitment to better and more efficiently regulate.10 This is a principle that ought to be deployed when considering new duties to avoid unnecessary duplication.

  7. In the absence of compelling evidence to justify the introduction of a positive duty, ACCI does not believe that such a measure would significantly contribute to the reduction of disability discrimination in the workplace. ACCI recommends allocating greater resources to educating

6 Model Work Health and Safety Act, Safe Work Australia: model-whs-bill-23 november _2023.pdf.

7 Model Code of Practice: Managing psychosocial hazards at work, p 19, 44 and 48.

8 DDA, section 123(4).

9 Australian Chamber of Commerce and Industry, Submission 39 to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022: Submissions — Parliament of Australia.

10 The Hon Dr Jim Chalmers MP, Press Conference, 21 August 2025: Press conference, Canberra | Treasury Ministers.

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businesses about disability discrimination and effective prevention strategies that have been demonstrated to work in practice, rather than implementing additional mechanisms for monitoring and enforcing compliance with obligations that are already established under existing legislation.

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

Strengthening the duty to provide adjustments

  1. The proposal from the Disability Royal Commission raised in the Issues Paper is to remove “reasonable” from the duty for a person to make adjustments for a person with a disability. The Disability Royal Commission noted that there appeared to have been misconceptions by those interpreting the DDA that an adjustment must be both reasonable and not cause unjustifiable hardship.

  2. While it is proposed that removing the word “reasonable” may address that misconception, it may also give rise to a greater misconception that there are no caveats around what adjustments may be requested of a person.

  3. Noting that section 4 of the DDA defines a reasonable adjustment as an adjustment that would not impose an unjustifiable hardship on the person, ACCI considers that it may be appropriate for the legislation to provide a note referring the reader to the definition found in section 4 where “reasonable adjustments” are mentioned in the DDA.

  4. ACCI would like to address the reference in the Issues Paper regarding the Disability Royal Commission’s findings that individuals with disabilities experience challenges engaging in conversations with employers, and that the responsibility to initiate discussions about workplace adjustments often rests with the individual with a disability. It is important to clarify that there is no requirement for a person to disclose their disability to an employer. While ACCI acknowledges the reported difficulties, it is also recognised that, to respect an individual’s choice around disclosure, such conversations may begin in this manner. ACCI recommends the distribution of educational resources to both employers and employees to facilitate these conversations. Supporting effective communication between all parties will likely yield greater progress in reducing disability discrimination and fostering mutual understanding than legislative reforms alone.

Definition of and considerations for unjustifiable hardship

  1. The Issues Paper proposes two options for addressing the Disability Royal Commission’s findings around the difficulties relating to unjustifiable hardship. The recommendation made by the Disability Royal Commission is to include two additional factors for consideration into the legislation when deciding whether an adjustment would impose unjustifiable hardship. Those factors are:

a. How much the person with a disability has been consulted, and

b. What alternative options were available to remove or reduce hardship.

  1. ACCI does consider that consultation and the exploration of alternative options are already encompassed within existing legislation and queries the necessity of the proposal. Nonetheless, ACCI would be of the view that the extent of consultation with individuals with disabilities should not be subject to quantification, it is sufficient to establish that consultation occurred. Furthermore,

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ACCI recommends that the reference to ‘what’ alternative arrangements were available be amended to ‘whether’ such arrangements existed.

  1. With reference to the suggestion in the Issues Paper concerning the documentation of factors considered by the employer, ACCI believes that providing reasons would be advantageous to all parties involved. However, ACCI strongly advises against mandating a prescriptive method for communicating and documenting such reasons. Noting that the burden of proving that an adjustment would impose unjustifiable hardship would lie on the business pursuant to section 11(2) of the DDA, it is not necessary to introduce prescription of responses. Nevertheless, communicating reasons enables all parties to fully comprehend the circumstances, thereby supporting informed decision-making as matters progress.

  2. The Issues Paper suggests that a second option is for an alterative definition of ‘unjustifiable hardship’, proposing “where the benefit to the person and community would be outweighed by the detriment and cost to any person concerned” as an option. ACCI does not consider that benefits to the community is a relevant consideration when examining unjustifiable hardship in an employment context, which is a contractual relationship between the employee and the employer. The definition of unjustifiable hardship must be fit for purpose for all potential applications under the DDA.

Expanding the factors considered by employers when determining if an employee can carry out the inherent requirements of particular work

  1. ACCI concurs with the Issues Paper’s recognition of the challenges businesses encounter in determining the inherent requirements of a role. This issue is particularly pronounced for smaller businesses, where employees may need to perform duties across various functions, resulting in broader role scopes compared to those in larger organisations. Additionally, it is essential that businesses retain the flexibility necessary to ensure ongoing viability.

  2. The Disability Royal Commission recommended that two additional factors be included in the DDA to specify that the “nature and extent of any adjustments made” and the “extent of consultation with any person with disability concerned” must be considered in determining whether a prospective or existing employee would be able to carry out the inherent requirements of particular work. ACCI does consider that those factors are already within the scope of the legislation that requires consideration of “any other factor that it is reasonable to take into account”.11

  3. ACCI’s position closely corresponds with that of the Productivity Commission, as outlined in the Issues Paper, suggesting that issuing guidelines to support employers, employees, and prospective employees is the most adaptable, effective, and practical method for addressing diverse circumstances while maintaining flexibility.

  4. Guidelines that have been informed by lived experiences of both employees with a disability and employers who have accomplished positive outcomes will be of great benefit to the business community. This would involve both industry-specific guidelines, but also guidelines that are specific to business size. ACCI notes that the Royal Commission into Victoria’s Mental Health System recommended that the Victorian Government “sponsor industry-based trials [of at least 3 years] to demonstrate how to adapt and implement comprehensive mentally healthy workplace approaches in an industry context” to “test and develop guidance … and to build evidence for

11 DDA, section 2(c).

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developing industry-specific tools and resources.“12 A similar approach may be of significant benefit to developing tools and resources that will have a genuine and demonstrated impact on businesses.

12 Royal Commission into Victoria’s Mental Health System, Final Report, Vol 2, 2 March 2021, pg 77, Final Report – Volume 2 – Collaboration to support good mental health and wellbeing.

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Part 6 – Modernising the Disability Discrimination Act

Disability action plans

  1. The Issues Paper outlines several options for disability action plans, such as establishing guidelines, setting minimum standards, introducing review requirements, and enabling the AHRC to reject disability action plans that do not satisfy these criteria. ACCI supports the development of comprehensive guidelines to help businesses understand the key factors to consider when creating a disability action plan. While disability action plans remain voluntary, providing additional guidance may assist businesses in making informed choices about whether to adopt such a plan.

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About ACCI

The Australian Chamber of Commerce and Industry represents hundreds of thousands of businesses in every state and territory and across all industries. Ranging from small and medium enterprises to the largest companies, our network employs millions of people.

ACCI strives to make Australia the best place in the world to do business – so that Australians have the jobs, living standards and opportunities to which they aspire.

We seek to create an environment in which businesspeople, employees and independent contractors can achieve their potential as part of a dynamic private sector. We encourage entrepreneurship and innovation to achieve prosperity, economic growth, and jobs.

We focus on issues that impact on business, including economics, trade, workplace relations, work health and safety, and employment, education, and training.

We advocate for Australian business in public debate and to policy decision-makers, including ministers, shadow ministers, other members of parliament, ministerial policy advisors, public servants, regulators and other national agencies. We represent Australian business in international forums.

We represent the broad interests of the private sector rather than individual clients or a narrow sectional interest.

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12 ACCI Submission: Disability Discrimination Act 1992 Review

Australian Chamber of Commerce and Industry