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Submission to the Review of the Disability Discrimination Act 1992

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Submission to the

Review of the Disability Discrimination Act 1992

Consumers of Mental Health WA

November 2025

Consumers of Mental Health WA

Table of Contents

Submission to the Review of the Disability Discrimination Act 1992 ii

1. Acknowledgement of Country

Consumers of Mental Health WA proudly acknowledge Aboriginal people as Australia’s First Peoples and the Traditional Owners and Custodians of the Land and Water on which we live and work. We acknowledge Western Australia’s First Nations communities and culture and pay respect to Aboriginal Elders past, present and emerging.  

We recognise that Sovereignty was never ceded and the significant and negative consequences of colonisation and dispossession on Aboriginal communities.

Despite the far-reaching and long-lasting impacts of colonisation on First Nations communities, Aboriginal people remain resilient and continue to retain a strong connection to culture. We acknowledge the strong connection of First Nations Peoples to Country, culture and community, and the centrality of this to positive mental health and wellbeing.

2. Preamble

2.1 About the Respondents

Consumers of Mental Health WA (CoMHWA) is Western Australia’s peak body for and by mental health consumers (people with a past or present lived experience of mental health issues, psychological or emotional distress). We are a not-for-profit, systemic advocacy organisation independent from mental health services that exists to listen to, understand and act upon the voices of consumers. We work collaboratively with other user-led organisations and a diversity of stakeholders to advance our rights, equality, recovery and wellbeing.

2.2 Request for Feedback

CoMHWA works to uphold the dignity and human rights of consumers, through providing advocacy in leading change with and for consumers. We appreciate notification of the outcomes of our submission to this consultation in order to understand and communicate the difference made through our work.

Please provide feedback via the contact details on this submission’s cover page.

2.3 Language

CoMHWA uses the term mental health ‘consumer’ throughout this submission. Mental health consumers to refer to people who identify as having a past or present lived experience of psychological and emotional distress, irrespective of whether they have received a diagnosis of mental illness or accessed services. Other ways people may choose to describe themselves include ‘peer,’ ‘survivor,’ ‘person with a lived experience’ and ‘expert by experience.’

This definition is based on consumers’ call for respect, dignity and choice in how we choose to individually identify. As individuals we choose different ways to name and describe our experiences that may confirm or trouble ideas about ‘mental illness.’

CoMHWA endorses Black Dog Institute’s Aboriginal and Torres Strait Islander Lived Experience Centre’s universal definition of lived experience for First Nation communities:

“A lived experience recognises the effects of ongoing negative historical impacts and or specific events on the social and emotional wellbeing of Aboriginal and Torres Strait Islander peoples. It encompasses the cultural, spiritual, physical, emotional and mental wellbeing of the individual, family or community.

People with lived or living experience of suicide are those who have experienced suicidal thoughts, survived a suicide attempt, cared for someone through a suicidal crisis, been bereaved by suicide or having a loved one who has died by suicide, acknowledging that this experience is significantly

different and takes into consideration Aboriginal and Torres Strait Islander peoples’ ways of understanding social and emotional wellbeing.”

This definition recognises that there are fundamental differences to how Aboriginal and Torres Strait Islander people experience and define mental health challenges and suicide compared to mainstream definitions.

2.4 About the consultation

Reproduced from The Attorney General’s Department website:

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) made 222 recommendations to government in its Final Report. Some of these recommendations included changes to the Disability Discrimination Act.

On 31 July 2024, the Australian Government published its response to these recommendations. This included accepting, in principle, the 15 recommendations related to the Disability Discrimination Act.

As part of the government response to the Disability Royal Commission, the government committed $6.9 million to the review and modernisation of the Disability Discrimination Act.

The government has asked us to lead this review. The review will consider options to implement the 15 recommendations from the Disability Royal Commission, as well as further changes to improve the experiences of people with disability.

The disability community has contributed to many reviews and inquiries over the 3 decades that the Disability Discrimination Act has been in force, including the Disability Royal Commission. This review will draw on the reports and submissions from these reviews and inquiries so that people with disability do not need to advocate again about the same issues and experiences.

In late 2024, we met with representatives of the disability community and legal representatives to inform our approach to the review. Public consultation on the review is now open.

There are 2 ways to share your views:

  • Make a submission in response to the questions in our Issues Paper. You can make a submission as an individual or on behalf of an organisation.

  • Complete the shorter community survey . This survey has a shorter set of questions for people in the community who do not want to respond to the questions in the Issues Paper but would still like to contribute to the review.

Consultation was open until 14 November 2025.

3. Introduction

CoMHWA welcomes the opportunity to provide feedback to the Attorney General’s Office on the review of the Disability Discrimination Act 1992 (Cth). As the peak body in WA for mental health consumers, and as an organisation that is entirely Lived Experience (Peer) worker led and staffed, we focus in this submission on providing feedback informed by the experiences of people with psychosocial disability and/or mental health challenges.

CoMHWA believes that significant amendments are required so that the Disability Discrimination Act (hereafter, the Act) promotes and protects the rights of people with mental health challenges and/or psychosocial disability, and our ability to go about our lives free from discrimination. We have heard from many consumers that they experience discrimination across all areas of life, which can seriously impact the trajectory of their lives and their recovery. The Act is not presently an effective legislative instrument against discrimination because it offers little to prevent discrimination from occurring, and does not provide consumers who have experienced discrimination timely, effective, or accessible options for seeking justice. Key to remedying the shortcomings of the Act and increasing its effectiveness is clarifying its purpose so that it is consistently interpreted in ways that favour the interests and rights of people with disability. Accordingly, we support changes to the Act that align it with human rights and disability rights instruments, and we support many of the amendments recommended by the Disability Royal Commission. We are in favour of an Act that removes present legislative barriers to making complaints and receiving adjustments and that requires proactive and robust action on the part of duty holders to prevent discrimination through positive duty. There is a need for the Act to embed specific protections for consumers, because the nature of psychosocial disability or disability connected with mental health challenges is not well represented in either the Act’s current definitions or its current protections against discrimination. Thoroughgoing changes to transform the conceptual framework of disability on which the Act is built, starting with its deficit-based, medicalised definition of disability, will ensure that there is the legislative support for consumers to participate in an inclusive society that recognises the value and dignity of people with mental health challenges.

We base our submission on:

  • Responses to a survey that was distributed to CoMHWA members, open between 28th August 2025 and 5th October 2025
  • 3 focus groups (with 21 participants), and an additional 6 one-to-one consultative discussions
  • Consultation with our existing consumer reference and advisory groups
  • Ongoing data collection and input from CoMHWA’s Lived Experience (Peer) worker-run Individual Advocacy and Peer Pathways (service navigation) programs
  • Ongoing consultation with consumers in Western Australia on joint priorities for an improved mental health system
  • Consumer representation in relevant settings, including but not limited to: Primary Health networks (WAPHA), WA regional equivalents of the Local Health Networks (regional mental health services under the WA Health Board structure), the Mental Health Commission and the health complaints agency, Health and Disability Services Complaints Office (HaDSCO).

CoMHWA provides feedback and recommendations in response to the consultation questions (questions to which we are not responding are greyed out), along with additional context and insight concerning the nature of discrimination that consumers experience and what is required to address discrimination across different areas of life.

Figure 1. (above) The process of my thinking on paper. Tam.

(Artwork created during a focus group on the Review)

4. Response to consultation questions

4.1 Updating understandings of disability and disability discrimination

Definition of disability

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

CoMHWA recommends:

a shift towards a human rights-based definition of disability in the Disability Discrimination Act

the removal of stigmatising language including the Act’s mention of “disturbed behaviour”1

that the legislation be drafted in such a way that psychosocial disability and disabilities related to mental health are treated with the same seriousness as other disabilities and reflect the specific experiences of consumers

that mental health challenges and psychosocial disability be added to the list of covered impairments.

Consumers felt the language used to define disability related to mental health in the Act was neither appropriate, nor in step with contemporary language. One consumer described it as “dated and archaic.” Consumers were not in favour of the language of impairment, or medicalised language with respect to mental health and psychosocial disability generally. CoMHWA rejects the premise that discrimination based on disability comes about due to a medical condition that is ‘disabling.’ Instead, it arises from social attitudes and behaviours concerning ‘ability,’ ‘disability’ and what is ‘normal,’ and the proliferation of barriers to the full enjoyment of those rights. This creates a difficulty for drafters when defining ‘disability’ for the purpose of the Act because, within this framing, they must sort those with disability from those who do not have disability. The role of the legislation is to ensure that people with disability, including people with mental health challenges, have full access to human rights and to prevent the rights violations that are presently a common part of consumers’ experiences.

CoMHWA supports a broad definition of disability that includes mention of ‘health status,’ though this should be defined as broader than diagnostic status. In the words of one consumer:

“Discrimination does not require diagnosis. You don’t need to have a diagnosis for it to be discrimination, or the person doesn’t need to know that you have a diagnosis.”

1 Disability Discrimination Act 1992 (Cth) https://www.legislation.gov.au/C2004A04426/latest/text, part 1.

CoMHWA also supports a definition that provides protection from discrimination on the basis of ‘irrelevant medical record.’ The mention of ‘irrelevant medical record’2 may be helpful for some people with mental health challenges, including those with past misdiagnoses on their record that have later been updated, especially if the diagnosis was highly stigmatised. Consumers told us that once something is on their record, it affects their care, treatment, and interaction with services for many years into the future and removal of information from records is very difficult.

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

In developing a new definition, the wishes and experiences of people with disability, including mental health challenges and psychosocial disability, should be foremost among considerations, and they have called for non-stigmatising language that promotes their rights. The review should engage people with disability to review and reform language not only in definitions of disability, but throughout the entire Act, to ensure that appropriate and non-stigmatising language is used consistently.

It is essential that the definition encompass the experiences of people with lived experience of mental health challenges by acknowledging that some disabilities are hidden or invisible and the fact that mental health challenges can be episodic, as one consumer put it:

“People can be disabled personally, transiently, or in the moment by distress, episodic distress.”

Participants in the CoMHWA consultation process emphasised that invisible disabilities, especially those related to mental health, can be challenging to navigate due to social stigma and a lack of understanding. Some consumers experience a combination of mental health-related, neurological, and physical disabilities and have noticed differences in how they are perceived, with one consumer observing:

“Mental health challenges are invisible in a lot of people, you can’t tell that they are experiencing disability […] I don’t think people with a physical disability have it easier, but […] it less likely to be challenged by society.”

Addressing intersectionality

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

CoMHWA supports changes to the Act that enable applicants to bring claims on the basis of multiple or combined protected attributes.

2 Australian Government Attorney-General’s Department. (2025). Issues Paper: Disability Discrimination Act 1992 Review. https://consultations.ag.gov.au/rights-and-protections/dda-issues-paper/, p. 25.

This change would better align the Act with the Convention on the Rights of Persons with Disabilities (CRPD) which acknowledges the impact of multiple intersecting forms of discrimination.3 All of the consumers we heard from through our consultation process were strongly in favour of allowing claims to be brought for multiple or combined protected attributes because this will reduce the burden on consumers of proving grounds for discrimination across separate claims under multiple anti-discrimination acts, and enable more authentic representation of their experiences. Many shared details of their own intersectional experiences and identities, saying that the complexities of these intersections make it impossible to attribute experiences of discrimination to disability alone, as the following quotes illustrate:

“I also think you need to be able to raise multiple aspects of discrimination at once. There is often such a complex intersection of circumstances.”

“Is it trauma related or is it actually neurodivergence? […] The level of that seems to be really specific to women as well. So then you’ve got the intersectionality of the gendered issues and the differences. So this is the thing. It’s like what discrimination do you put it under?”

“How can I separate my […] disorder from the rest of me? We’re a whole person, are we?”

The Act must be able to respond to the realities that the nature of discrimination on the basis of different protected attributes differs across the intersection of those attributes. CoMHWA hears from Aboriginal and Torres Strait Islander consumers of the intersections of racism and mental health stigma that affect access to supports necessary for social and emotional wellbeing. As one dimension of this, the intersection of discrimination on the basis of race and disability means that many Aboriginal and Torres Strait Islander people who present to EDs receive inappropriate treatment and assessment, lack of information and poor communication, are dismissed altogether, or experience stereotyping around the nature of the health and wellbeing challenges they are presenting around.4

One consumer spoke about how culturally and racially marginalised consumers encounter language and cultural context barriers and lack of access considerations that make engagement in services especially challenging, which is pertinent in considering questions of indirect discrimination:

“The language and cultural barriers can be huge, and even just assessing the basic supports can be really challenging for the CaLD community.”

3 United Nations. (2006). Convention on the Rights of Persons with Disabilities. https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-persons-disabilities 4 Askew, D. A., Foley, W., Kirk, C., & Williamson, D. (2021). “I’m outta here!”: a qualitative investigation into why Aboriginal and non-Aboriginal people self-discharge from hospital. BMC Health Services Research, 21(1), 907. https://doi.org/10.1186/s12913-021-06880-9

Another consumer discussed the intersections of financial disadvantage and mental health challenges when discrimination is experienced:

“[It’s possible to be] disadvantaged financially from discrimination in areas of life relating to mental health, but also [being] disadvantaged means you’re more exposed to discrimination and have fewer ways of seeking justice and getting supports that are needed.”

4. Could any other changes be made to the Disability Discrimination Act to recognise and provide protection for people with disability who have intersecting identities, or addressing compounding discrimination?

CoMHWA recommends:

the Act clarify expressly that claims alleging unlawful discrimination include discrimination on the basis of intersecting or combined protected attributes, including multiple disabilities

removing the comparator test in the definition of discrimination as a means of removing barriers to addressing compounding discrimination.

As the issues paper points out,5 for people with intersecting identities, proving they have been treated less favourably compared to how a person who does not have disability in similar circumstances is difficult, as it may be unclear who they ought to be compared against. In the words of one consumer:

“[The law] needs to have a better understanding of intersectionality. The current way we test, if it were Discrimination based on your disability, is like pulling that one aspect out, and those things cannot so easily be disentangled. I think a lot falls through the cracks.”

4.2 Amending the definition of direct discrimination

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?

CoMHWA recommends amending the definition of direct discrimination by:

removing the comparator test (as suggested by the Disability Royal Commission) and instead define direct discrimination in terms of whether a person has been treated unfavourably because of their disability (the detriment test)

adding the requirement to explore whether disability was a factor weighing in the decision to treat a person unfavourably, rather than just whether disability was the reason for the treatment.

5 Australian Government Attorney-General’s Department, 2025.

A major shortcoming of the comparator approach is that it has resulted in a narrowed interpretation of direct discrimination in court rulings, some of which have found that direct discrimination is not occurring where the respondent has successfully argued they would treat all people displaying the behaviours of the applicant in the same way. That is, it “enables a discriminator to be found not to have treated a person with a disability less favourably if it is established that he or she treats all people displaying that particular characteristic or behaviour in the same prejudicial manner.”6 Such could be said to be the case in the decision in Purvis v New South Wales, where the court found that Daniel Hoggan, a student with ADHD, had not been discriminated against when his school used exclusionary discipline, because the school claimed they would treat any student displaying the specific behaviours that were the basis of their decision to exclude the student that way – despite the fact that the behaviour was a consequence of and indistinguishable from Hoggan’s disability. The court’s decision continues to affect the judicial approach to determining direct discrimination in ways that fail people with mental health challenges, neurodiversity, and hidden disabilities.7

It may not be apparent that people with mental health challenges and psychosocial disability have disability until it manifests in behaviour. The episodic and fluctuating nature of mental health challenges can mean changes for how a person behaves at times. A person may not previously have disclosed their disability because, among other reasons, because they feared encountering stigma, so their behaviour might not be interpreted appropriately in context. Amendments to the Act in 2009 included adding a note to the Act’s definition of disability: “to avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.”8 This amendment gives grounds to more expressly recognise discrimination on the basis of behaviour, though the limitations in interpretation of direct discrimination mean that it remains challenging to seek legal recognition when discrimination is experienced on that basis.

One implication of the law is that it risks entrenching ableist norms of conduct that disadvantage consumers, for instance, neurodiverse consumers may be encouraged to ‘mask’ behaviours to avoid discrimination on the basis of behaviours that others may perceive as outside of the norm.

As we describe elsewhere in this submission, a stand-alone duty to make adjustments should be added to the Act, which impacts the definition of discrimination. Introducing a standalone duty to make adjustments would remedy shortcomings of the present interpretation of duty to make reasonable adjustments in cases

6 Roberts, S. (2004). The inequality of treating unequals equally: The future of direct discrimination under the Disability Discrimination Act 1992 (Cth). https://aial.org.au/wp-content/uploads/2020/03/AIALForum45(April2005).pdf#page=23, p. 34. 7 Arnold, B., Easteal, P., Easteal, S. & Rice, S. (2010). It just doesn’t add up: ADHD/ADD, the workplace and discrimination. Melbourne University Law Review, 34(2), 359-391. https://law.unimelb.edu.au/__data/assets/pdf_file/0009/1703574/34_2_1.pdf, p. 476 8 Disability Discrimination Act 1992 (Cth), Part 1, S. 3.

of discrimination which are the consequence of the decisions made in the case of Sklavos v The Australasian College of Dermatologists (2017). The outcome of this case was that failure to provide reasonable adjustment could not be found to be discrimination unless it was an express result of a person’s disability.9 One paper commentating on the case points out: “arguably, failure to make reasonable adjustment will almost always be caused by considerations of cost and inconvenience and almost never by a complainant’s disability,”10 and duty holders are unlikely to make clear statements that the substantive reason they are not providing the adjustment is the person’s disability. The current law has resulted in applicants making a discrimination claim having to take on the burden to prove that failure to provide an adjustment is because of their disability.

Another approach the review may consider is to test whether disability was a factor weighing in the decision to treat a person unfavourably.11 This approach comes with the benefit of closing potential loopholes in law where a respondent could make use of a proxy to argue they were not discriminating against a person because of disability. For example, one consumer reflected on a situation in which they have been denied access to housing but were told it was because of reasons that were not to do with their mental health challenges:

“Discrimination is actually subtle. They don’t say oh it’s because of your disability, but they use other excuses to expel you.”

This proposed approach looks at what aim the respondent was seeking to achieve and at all the factors that they considered in formulating that aim as well as the method of meeting that aim. It enables a more nuanced understanding of how discrimination may happen and gives the law ability to recognise this.

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

CoMHWA recommends that the Act adopt the model of the Fair Work Act 2009 (Cth) of addressing burden of proof, where the applicant must first prove that they have disability and that they were treated unfavourably and the burden of proof is on the respondent to prove that the treatment was not on the basis of the person’s disability.

It is unreasonable for consumers to have the responsibility to prove that the reason they were discriminated against is because of their disability, because they will not have access to relevant

9 Australian Government Attorney-General’s Department, 2025, p. 49. 10 Dickson, E. (2022). Barriers to inclusion embedded in the Disability Discrimination Act 1992 (Cth). Australian Journal of Education, 66(3), 265-280. https://doi.org/10.1177/00049441221127708 11 Campbell, C. and Smith, D. (2023). Distinguishing Between Direct and Indirect Discrimination. Modern Law Review, 86(2), 307-330. https://doi.org/10.1111/1468-2230.12760

information, records and resources that the respondent has to explain the reasons for the respondent’s actions. Given that respondents do have access to such information and records, it should be a requirement that they make use of these to meet a burden of proof to establish the reasons for their actions.

Participants in CoMHWA’s consultations supported changes to the burden of proof. They noted that this is a large weight to take on and that they get very little support in the process:

“When I had to challenge a wrongful diagnosis […] it was a long and terrible process, but I did get a retraction and apology. The bar for me getting it changed was that this diagnosis would make my life demonstrably harder. The burden of proof is on you as a person, and the weight of that is extremely hard. They didn’t help me in this process at all.”

A significant issue for people with disabilities related to mental health challenges is that they are not believed when they complain. This places them in a doubly hard situation, as the burden of proof rests with them, but the evidence they offer is less likely to be believed. One consumer reflected:

“I wanted to speak a little bit about the burden of proof to say [discrimination] was because of a disability and prove that it happened when we are often placed as unreliable narrators of situations, especially when it’s people in positions of power.”

Consumers believed that shifting the burden of proof would help address the power imbalance that they experience when investigations into discrimination take place, as they would no longer have the responsibility of proving the reason for the treatment and there would be more in place to ensure that duty holders are held accountable for discriminatory behaviour. One consumer shared that when the burden on proof is on them, duty holders with more power are less likely to be held to account and then the person making a complaint suffers fallout from doing so:

“I had payback when I complained. […] Hard to prove and people in power can really get away with it.”

A different approach to the burden of proof would remove some of the existing barriers to making complaints about discrimination and enable a more straightforward process where people felt they had a better chance of getting justice:

“I learnt that it would be really helpful to have a pathway that the government has made a really clear, step by step, transparent and straightforward process. Instead of the messy, prolonged, and complex process that exists now.”

4.3 Amending the definition of indirect discrimination

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

CoMHWA recommends that the definition of indirect discrimination in the Act be amended to:

remove the element stating “because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition”

remove the ‘reasonableness element’ that states something is not indirect discrimination if “the requirement or condition is reasonable, having regard to the circumstances of the case”12

compel duty holders who seek to use the defence of unjustifiable hardship to avoid charges of indirect discrimination to explore alternative adjustments/ways of avoiding discrimination that do not impose unjustifiable hardship and to consult with people with disability in that process.

Reform is needed to remove several layers of exceptions and defences that respondents may leverage to justify indirect discrimination, and, as one research paper explains, concepts of reasonableness and unjustifiable hardship in the current definition combine to make proving a claim difficult:

“reasonableness is considered before unjustifiable hardship, and even a reasonable adjustment could potentially be avoided if to make it would impose unjustifiable hardship. […] concepts of reasonableness and hardship, operating independently or together, have worked to defeat the majority of those discrimination claims in which less favourable treatment or the imposition of a discriminatory condition has been proved.”13

Consumers noted that discrimination, particularly indirect discrimination, can be unintentional, and can arise from duty holders having limited understandings of mental health and psychosocial disability:

“I think as a society we have a very narrow view of what disability means and when we’re thinking about discrimination for mental health, I think that really comes into play because some people may not realise that they are discriminating.”

Accounting for this, simplifying and clarifying the definition of indirect discrimination and disseminating information on what it can look like in the context of indirect discrimination against people with psychosocial disability and/or mental health challenges will make it easier for duty holders to avoid and for consumers to seek protections when discrimination happens.

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

12 Disability Discrimination Act 1992 (Cth), part 1, S. 6. 13 Dickson, 2022, p. 275.

c. replaced by a legitimate and proportionate test d. other.

Please expand on your response.

CoMHWA recommends that the reasonableness element be removed from the definition of indirect discrimination. We do not believe that it should be replaced by or supplemented with any additional tests or information when it is removed.

The reasonableness element is subjective, vague, and at least partially redundant when considering that unjustifiable hardship is also a component in determining indirect discrimination, as recent research analysing the impact of these elements in the law makes clear: “relevant circumstances for determination of reasonableness and hardship overlap. Indeed, because the law requires that ‘all relevant circumstances’ must be considered for proof of either, either enquiry may cover the same territory.”14 The reasonableness element is a barrier to efforts to seek justice in cases of indirect discrimination as its interpretation in court (as in the Sklavos case) has resulted in the determination that, if a requirement imposed on people with disability is felt to be ‘reasonable,’ then it is not indirect discrimination, and the duty holder does not have to make adjustments. Such interpretation undermines the intention of the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth), which aimed to clarify that the Act entails a duty to make adjustments (unless this causes unjustifiable hardship).

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

CoMHWA recommends the language of “does not or would not comply, or is not able or would not be able to comply” should be removed from the Act’s definition of indirect discrimination.

This language is confusing and the effective operation of many similar pieces of legislation without that wording demonstrates that it is redundant. It is also a barrier to the recognition of indirect discrimination against people with mental health challenges. The episodic nature of some consumers’ experiences of mental health challenges means that ability to comply may fluctuate, and there is not sufficient recognition of the nature of mental health challenges in the Act and in the interpretation of the Act in practice to provide surety that this will be recognised if a consumer were to bring a claim of indirect discrimination.

14 Dickson, 2022, p. 276.

4.4 Interpreting the Disability Discrimination Act in line with the Convention on the Rights of Persons with Disabilities

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

CoMHWA recommends that the CRPD should be included in the objects provision of the Act, and should be accompanied by a statement that the Act should be interpreted in accordance with the CRPD.

The Act was created before Australia became a signatory to the CRPD, but it is a major element of how the Australian Government meets its duties under the CRPD. The CRPD requires signatories to bring their legislation in line with their CRPD obligations, which Australia has yet to do, therefore, mention of the CRPD in the objects provision should make explicit the intention of the Act to meet Australia’s CRPD obligations. This amendment would also give effect to changes proposed in the below question regarding interpretation of the Act in line with human rights treaties.

Consumers often experience deprivation of and violations of their rights, autonomy, and dignity, especially within the mental health system. There, approaches to treatment and care are frequently paternalistic, and deny them dignity of risk and the opportunity to make choices for themselves because of the assumption that they do not have the capacity to make decisions for their own lives. The Mental Health Act 2014 (WA) allows for consumers to be forced into involuntary treatment by a psychiatrist.15 Consumers also experience coercion in mental health systems when they are threatened with involuntary treatment orders when they try to discharge from a voluntary inpatient facility or when they choose not to take particular medication. Consumers described how their experiences of discrimination in the mental health system, where their experiences were not believed, and where they were judged to lack capacity to make decisions for themselves, intersect with mental health law in ways that compromise their rights:

“I felt like I was being treated like a prisoner as soon as I objected to a medication. They didn’t see me as competent to object.”

“A lot of the nurses made fun of me, mimicking the noises that I was hearing at the time. They coerced me into taking medication, which gave me side effects for 6 weeks where I couldn’t walk. They didn’t believe my experiences and symptoms […] I learned that they can make you involuntary if you cannot take medication, so I was afraid and complied with them.”

15 Consumers of Mental Health WA (2025). CoMHWA Member Briefing Paper: Involuntary Treatment. https://comhwa.org.au/wp-content/uploads/2025/11/SA-2025-Position-Paper-3-Involuntary-Treatment-1.pdf

These practices do not respect the human rights of consumers as defined in the CRPD.16 As such, consumers desire effective legislation that better safeguards their rights:

“People with disability should be allowed to have the same rights as other people.”

Consumers indicated preferences for a human rights lens when it comes to addressing discrimination, rather than discrimination laws that focus on only one aspect of their identities and experiences:

“If we had [a Human Rights Act], it would be much easier to pursue discrimination.”

“The lack [of a Human Rights Act] means that there are inconsistent and limited actions that we can undertake.”

Given that Australia has no Human Rights Act, ensuring what laws we do have are in step with human rights treaties is essential to safeguarding human rights. CoMHWA supports the Disability Royal Commission’s recommendations that a Disability Rights Act be created for Australia, though we feel that the review should seek to align the Disability Discrimination Act with human rights frameworks so that people with disability are not left waiting on the creation of a new act for their rights to be affirmed. The inclusion of the CRPD in the Objects of the Act would enable some basis for actioning reforms needed to prevent the human rights violations currently experienced by many consumers.

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

CoMHWA recommends that a requirement that the Disability Discrimination Act should be interpreted in a way that is beneficial to people with disability should be explicitly written into the Act, in line with human rights treaties and the CRPD.

In the history of the Act’s operation so far, there are many examples of interpretations (such as those discussed in our response to question 5) that are not to the benefit of people with disability and that have actively resulted in a need to amend the Act to ensure that such interpretations do not continue to impact the ability of the law to protect against discrimination on the basis of disability.

4.5 Positive duty to eliminate discrimination

CoMHWA recommends that a positive duty to avoid discrimination be introduced to the Act.

CoMHWA, and the consumers we have consulted with, are overwhelmingly in favour of a positive duty, because it takes a proactive approach to eliminating discrimination. The current reactive model relies on

16 World Health Organization and United Nations. (2023). Mental health, human rights and legislation: guidance and practice. https://www.who.int/publications/i/item/9789240080737, pp. 13-16.

complaints being raised after discrimination has already occurred, which does little to forestall the harms caused by discrimination. One consumer reflected on this in our consultation:

“I like that this is a proactive move to prevent harm from happening; people need to think in advance about the repercussions of their actions. Right now, there are no consequences for not preventing this harm.”

International research has shown that discrimination on the basis of mental health challenges causes significant distress, worsening mental health and wellbeing,17 social exclusion,18 worse employment19, housing,20 and educational outcomes, and worse economic outcomes.21 It discourages help-seeking and leads to poorer treatment and care in health services.22 The protection of mental health consumers’ civil and human rights by Australian law has been historically inadequate. Incorporating positive duties into the legislation is vital to begin rectifying systemic discrimination.

The present Act then adds to that harm the requirement for consumers to make a complaint in order for anything to be done about the discrimination:

“I’ve had to choose which path, which battle I take, because there’s multiple things going on. What do I know about the complaints process? How am I gonna find out about the complaints process? And my capacity at the time might be very diminished because of my mental health challenges.”

Making a complaint is itself a distressing, lengthy process, leading many consumers to avoid it or otherwise experience more intense distress during that process. Consumers are tasked with managing their wellbeing through the process, often without additional supports, and it can compromise their recovery. CoMHWA’s individual advocates described how they assisted a consumer in seeking justice for discrimination experienced in public housing, where some of their behaviours were labelled and treated as ‘disruptive,’ despite being connected with their mental health distress and disability. The consumer

17 Chan, K. K. S., & Tsui, J. K. C. (2023). Longitudinal impact of experienced discrimination on mental health among people with mental disorders. Psychiatry research, 322, 115099. https://doi.org/10.1016/j.psychres.2023.115099 18 Sickel, A. E., Seacat, J. D., & Nabors, N. A. (2014). Mental health stigma update: A review of consequences. Advances in Mental Health, 12(3), 202–215. https://doi.org/10.1080/18374905.2014.11081898 19 Brohan, E., & Thornicroft, G. (2010). Stigma and discrimination of mental health problems: workplace implications. Occupational medicine, 60(6), 414–415. https://doi.org/10.1093/occmed/kqq048 20 Mejia-Lancheros, C., Lachaud, J., Woodhall-Melnik, J., O’Campo, P., Hwang, S. W., & Stergiopoulos, V. (2021). Longitudinal interrelationships of mental health discrimination and stigma with housing and well-being outcomes in adults with mental illness and recent experience of homelessness. Social science & medicine (1982), 268, 113463. https://doi.org/10.1016/j.socscimed.2020.113463 21 Sickel et a., 2014. 22 Chukwuma, O. V., Ezeani, E. I., Fatoye, E. O., Benjamin, J., Okobi, O. E., Nwume, C. G., & Egberuare, E. N. (2024). A Systematic Review of the Effect of Stigmatization on Psychiatric Illness Outcomes. Cureus, 16(6), e62642. https://doi.org/10.7759/cureus.62642 Thornicroft, G., Rose, D., & Kassam, A. (2007). Discrimination in health care against people with mental illness. International Review of Psychiatry, 19(2), 113–122. https://doi.org/10.1080/09540260701278937

experienced extreme stress and crisis as a consequence of events surrounding the discrimination, and took the issue to court, which was an intensely distressing process in itself. The case was decided in the consumer’s favour, but justice came at the expense of trauma.

Some consumers were sceptical of who would be charged with the task of implementing positive duties and how they would work practically, suggesting that robust and specific guidance and oversight would be needed across different contexts:

“To me, it is extremely wishy washy. In each different context, the requirements will be very different, due to the varied nature of disability. Two people with the ‘same’ disability will have radically different circumstances.”

Positive duties should include the obligation to have transparent and accessible complaints processes and procedures, and could encourage services to be more proactive in soliciting feedback and following up:

“Feedback and what the service agreed to do about it [should be] advertised back to people.”

Introduction of positive duties would remove barriers to inclusion and participation by encouraging the creation of stigma-free spaces. It would make it easier to ask for adjustments, as when consumers have previously encountered stigma in a space, they feel unsafe asking for reasonable adjustments. Some consumers had positive experiences where representatives of public-facing organisations were trained, reporting positive interaction when they were wearing the “sunflower lanyard,” for instance, due to the staff being trained to recognise what it meant. This demonstrates that proactive measures to include and make accessible services and spaces, it makes a real difference to consumers’ lives and their access to supports.

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

CoMHWA recommends that positive duty should apply to all duty holders including public and private sector entities, as does the duty in the Sex Discrimination Act 1984 (Cth).

Most consumers indicated to CoMHWA that they wanted positive duties to apply in all areas of life, and to all organisations who engaged with the public:

“The positive duty should apply to anyone dealing with the public.”

Some consumers expressed hesitance around the possible cost on small businesses, though CoMHWA notes that such businesses would have recourse to unjustifiable hardship to avoid ruinous impacts to their enterprise.

“I can’t see it in small businesses due to the money it would cost to implement this measure. For governments and other large orgs this could be great.”

While CoMHWA feels that positive duty should apply to all duty holders, we would like to comment on a few specific sectors and duty holders to reflect what we have heard from consumers concerning the impact of lack of accessibility and discrimination in key areas and life, and how positive duty could assist in addressing this.

Health, mental health and wellbeing services

Consumers identified that positive duty could transform their access to and experiences of care and support by giving services impetus to pursue training and education for staff in working in ways that are trauma-informed, appropriate and respect the rights and autonomy of consumers, and by providing cause for services to examine how their models of care, assessment and treatment, and risk processes could better safeguard rights.

Systemic discrimination in the health and mental health systems was a major theme in consumer experiences; the medical model of treatment frames them in terms of labels, deficit and symptoms. Consumers have experiences of risk frameworks and assessments, routinely conducted without their meaningful input, resulting in discrimination and use of restraint, seclusion, and force against them:

“I get constantly knocked back because of risk assessments. People aren’t willing to work with that.”

“Risk assessments assume that the consumer is a potential perpetrator rather than a victim.”

Consumers experience diagnostic overshadowing, stigma (often relating to their diagnosis), dismissal, humiliation, harm, and assumptions that they lack decision-making capability. One consumer recounted her experience when she chose not to take a specific medication during a voluntary inpatient stay, which led to her being assessed and placed under involuntary treatment orders, and having multiple male nurses restrain her physically and then chemically. This was humiliating and caused enduring distress.

Positive duty should be written to promote equity in service access, as many consumers are refused service provision. People with complex or co-occurring mental health challenges or histories presenting to services and EDs are in many cases turned away on the logic that they are too ‘complex’ for services to support, and are left to reach more severe crisis and distress before they are seen in EDs. The labelling of consumers as ‘complex’ results in consumers being turned away from services and even hospitals and EDs, and refused referrals.

“Complex is used as a label to avoid admitting to service issues.”

EDs are not appropriate or therapeutic places for people experiencing mental health crisis, and as a consequence, many consumers experience discrimination there.23 Having alerts on the system from previous engagements affects consumers years after the alert was placed, which affects their ongoing access to services and supports and makes no space for recognition of recovery.

“When I try to access any sort of healthcare either directly related or completely unrelated to my mental health - I am often met with rejection, silence or disrespect because of my mental health history and previous diagnostic assessment.”

Consumers also felt that spaces taking action to avoid discrimination would need to create more appropriate environments for people with mental health challenges that are trauma-informed, low-sensory, and staffed by people with appropriate training, with many noting that having Lived Experience/Peer workers available is helpful to ensure accessibility and safety. One consumer envisioned a low sensory Emergency Department, for example.

Government systems and welfare supports

Ensuring that consumers have equity in accessing government supports such as Disability Support Pension, and that staff in government systems such as Centrelink engage in appropriate and non-discriminatory ways with people with mental health challenges could be an outcome of positive duties extending to these duty holders. Currently, consumers encounter barriers when they engage with Centrelink because of assumptions that they either did not need supports, or that their needs were too complex. One consumer reflected on the impact of stigmatising framing of mental health challenges as not constituting ‘legitimate’ disability or as not being serious enough to warrant support, which is evident in media narratives about people with mental health challenges taking advantage of welfare supports:

“I think they’re using [discourse in the media about abuse of the DSP] to judge us.”

On the other extreme:

“People say you’re too hard, you’re put at the back of the line. There are attitudes and assumptions that you can’t think for yourself, you’re too sick.”

NDIS

Positive duties must apply to the NDIA (as the agency that implements the NDIS), the NDIS Quality and Safeguarding Commission (as the independent regulatory and oversight body) and to NDIS providers. Accessing NDIS for psychosocial disability is particularly challenging, as evidenced by the drastic decline in

23 Consumers of Mental Health WA (2025). Establishing an Alternative to ED for People Experiencing Mental Health Crisis in Perth. https://comhwa.org.au/wp-content/uploads/2025/10/CoMHWA-Mental-Health-Crisis-Care-Centre-Research-Paper-2025-Update.pdf

proportion of successful applications from participants with psychosocial disability,24 which implies that access decisions should be closely examined to avoid bias and discrimination against people with psychosocial disability. Discrimination could be avoided by examining the types of NDIS supports that are funded and the nature of individual funding plans to prevent participants with psychosocial disability from continuing to be disadvantaged by the present limited number of tailored and specific psychosocial supports in the NDIS, or by the ongoing dismissal of their physical needs in funding plans.

Positive duties would also necessitate that mainstream services do more to avoid practices that discriminate against NDIS participants by deprioritising them or barring them from access, as some participants come up against barriers to accessing needed mainstream and community mental health and housing supports because they have NDIS funding, even though NDIS funding is specifically for NDIS supports and should not affect access to mainstream supports systems. One consumer said:

“I am being denied crisis, DV [domestic violence], STA [short term accommodation], step up step down, community housing etc because a lot of services believe that because I have SIL [Supported independent living through NDIS], that gives me access to housing and so I’m not a priority.”

Housing

Positive duty would encourage housing services and private real estate agencies to take action to avoid discrimination against consumers and remove barriers to accessing and maintaining tenancy, including making application processes more accessible, offering accommodations around property maintenance and inspections and making adjustments to housing so that it is appropriate and accessible. Positive duty could motivate better training for public housing and housing services staff to engage appropriately with consumers, as consumers identified that their experiences of discrimination in accessing housing could vary between the person assigned to them and that there was no way to know if they would face discrimination.

CoMHWA has heard from consumers who have experienced discrimination in public housing and private rentals. Some consumers spoke of lack of understanding of mental health challenges and lack of accommodations around requirements for property maintenance, leading to ‘strikes’ against them and putting their housing at risk. One consumer said:

“They really are discriminating against people with mental health issues when people have issues with the house and they are going to throw people out into homelessness. How can we change the law to make sure that they are not unduly harsh on people with mental health challenges?”

24 National Disability Insurance Agency (2025). Table 2: Access in the year ending 31 March 2025 – Psychosocial Disability and all participants. From: Psychosocial data to 31 March 2025. [dataset]. https://dataresearch.ndis.gov.au/reports-and-analyses/participant-dashboards/psychosocial

CoMHWA has heard of instances in which behaviour stemming from a consumer’s mental health challenges or from distress are noticed and interpreted as disruptive, complaints made against them can jeopardise housing, even if they are in public/social housing.

It is important for positive duty to extend into the private rental market. Private rentals are a significant proportion of accommodation for people with mental health challenges, yet many consumers experience discrimination in the private rental market due to mental health challenges.25 Consumers are reluctant to ask for accommodations, raise issues with a property or self-advocate in a context where the balance of power is in favour of landlords and real estate agencies rather than tenants, because this might lead to discrimination or retaliation.

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

The incorporation of positive duties into legislation has resulted in a more proactive approach to eliminating discrimination that doesn’t rely on complaints being raised after discrimination has already occurred. The AHRC’s recent reflections on the introduction of positive duty into the Sex Discrimination Act suggest that there is a need to improve duty holder (particularly employer) accountability to positive duty by introducing civil penalties for breaches.26 Furthermore, community and duty-holder awareness of responsibilities under the positive duty have been limited.27

The operation of positive duty in the Equal Opportunity Act 2010 (Vic) meant that duty holders have been bound to prevent harmful actions that had previously been placed in the ‘too hard basket,’ though the enforcement of this depends on the powers and actions of enforcement bodies conducting investigations.28 The lesson to take from this example is that the AHRC must be given sufficient powers and resources to investigate and enforce positive duty.

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

25 Brackertz, N., Borrowman, L., Roggenbuck, C. Pollock, S. & Davis, E. (2020). Trajectories: the interplay between mental health and housing pathways. Australian Housing and Urban Research Institute Limited and Mind Australia. https://www.ahuri.edu.au/research/trajectories, p. 67. 26 Australian Human Rights Commission. (2025). Speaking from Experience: What needs to change to address workplace sexual harassment. https://humanrights.gov.au/sites/default/files/Speaking%20from%20Experience%20Report_0_0.pdf, pp. 66-71. 27 Ibid, p. 51. 28 For example, large retail franchises working to eliminate sexual harassment of employees, often young women, by customers. Equal Opportunity Act 2010 (Vic). https://www.legislation.vic.gov.au/in-force/acts/equal-opportunity-act-2010/029, S. 15 Victorian Equal Opportunity and Human Rights Commission. (2022). Investigation: Preventing sexual harassment in retail franchises. https://www.humanrights.vic.gov.au/legal-and-policy/research-reviews-and-investigations/retail-investigation/

The fact that the costs are weighed in the balance of whether action to ensure people with disability are able to fully access and participate in public life, as people who do not have disability do, speaks to a deficit-based framing of people with disability as socially burdensome. It continues to put the onus on people with disability themselves to shoulder the work and costs of accessing and participating in society to overcome barriers of inaccessibility.29 Consumers already bear the costs of experiences of discrimination both literally, as these have a significant economic impact,30 and in terms of impact on their wellbeing. Achieving inclusive equality is a goal too important to be limited by arguments of costs to individual duty holders, who could in any case have the defence of unjustifiable hardship should costs prove too high.

CoMHWA asks that, rather than exploring the costs of meeting positive duty, thought be given to the ongoing costs to society, governments and duty holders of continuing to avoid making the changes needed to promote substantive equality. These costs include the impacts of social exclusion, inaccessibility, and discrimination on consumers, and the costs to duty holders and society more broadly who, because of inaccessibility, are denied the benefit of the perspectives, strengths, skills and knowledge of consumers. Consumers who supported positive duty imagined a world in which people with mental health challenges would be recognised and valued for their strengths:

“People discriminate on the assumption that mental health consumers are deficient. Maybe [consumers could fill] roles with job requirements and criteria that we know people with mental health challenges excel at. […] Maybe bring in sections of the law that make these opportunities proactive, and can let people actually flourish.”

Engaging consumers in participation, co-design and consultation improves services and supports, quality of care and outcomes, and leads to innovative and high-quality research.31 Increasing access to mental health services and support has been identified as having significant economic benefits in the realm of increasing economic participation of people with mental health challenges alone.32 Consumers having access to safer spaces to seek supports for mental health improves engagement with services and has positive effects on

29 Vu, B., Khanam, R., Rahman, M., & Nghiem, S. (2020). The costs of disability in Australia: a hybrid panel-data examination. Health economics review, 10(1), 6. https://doi.org/10.1186/s13561-020-00264-1 30 Sharac, J., McCrone, P., Clement, S. & Thornicroft, G. (2010). The economic impact of mental health stigma and discrimination: A systematic review. Epidemiology and Psychiatric Sciences, 19(3), 223-232. doi:10.1017/S1121189X00001159 31 Bombard, Y., Baker, G.R., Orlando, E. Fancott, C., Bhatia, P., Casalino, S., Onate, K., Denis, J-L. & Pomey, M-P. (2018). Engaging patients to improve quality of care: a systematic review. Implementation Science, 13(98). https://doi.org/10.1186/s13012-018-0784-z Brett, J., Staniszewska, S., Mockford, C., Herron-Marx, S., Hughes, J., Tysall, C., & Suleman, R. (2014). A systematic review of the impact of patient and public involvement on service users, researchers and communities. The patient, 7(4), 387–395. https://doi.org/10.1007/s40271-014-0065-0 Larkin, M., Boden, Z. V. R. & Newton, E. (2015). On the Brink of Genuinely Collaborative Care: Experience-Based Co-Design in Mental Health. Qualitative Health Research, 25(11), 1463-1476. doi:10.1177/1049732315576494 32 Productivity Commission. (2020). Mental Health, Report no. 95. https://www.pc.gov.au/inquiries-and-research/mental-health/report/

wellbeing. This can play a role in preventing crisis, thereby reducing reliance on costly acute and crisis services and removing pressure on EDs and emergency services.33

Inclusion of people with disability in workplaces enhances profitability, productivity, and help create the kinds of inclusive work cultures that benefit all employees.34 Employing people with mental health challenges also carries those benefits, and while employers commonly conceptualise adjustments in terms of costs these entail, some research suggests these can come with savings as they increase productivity and benefit other employees also.35

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

CoMHWA recommends that no additional exceptions or limits be placed on the application of a positive duty, noting that duty holders already have recourse to unjustifiable hardship under the Act to explain why they are not applying positive duty.

4.6 Encouraging inclusion of people with disability in employment, education and other areas of public life

Strengthening the duty to provide adjustments

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?

CoMHWA recommends that the Act include a standalone duty to make adjustments.

The creation of a stand-alone duty to provide adjustments could remove some of the barriers to consumers obtaining adjustments and give duty holders a stronger understanding of their obligations. Consumers shared that asking for reasonable adjustments is, in many cases, a stressful experience that results in little useful support, as they encounter stigmatising attitudes that frame them as an issue, as not genuinely needing the supports they are asking for, as lacking work ethic, or as taking advantage of systems:

“After being hospitalised, I went back to work, my boss told me that I was making extra work for him in terms of accommodating me.”

33 Consumers of Mental Health WA, 2025, Establishing an Alternative to ED for People Experiencing Mental Health Crisis in Perth, p. 6. 34 Lindsay, S., Cagliostro, E., Albarico, M., Mortaji, N., & Karon, L. (2018). A Systematic Review of the Benefits of Hiring People with Disabilities. Journal of occupational rehabilitation, 28(4), 634–655. https://doi.org/10.1007/s10926-018-9756-z 35 Follmer, K. B., & Jones, K. S. (2018). Mental Illness in the Workplace: An Interdisciplinary Review and Organizational Research Agenda. Journal of Management, 44(1), 325–351. https://doi.org/10.1177/0149206317741194

“I feel that my integrity and work ethic are being scrutinised and doubted, even though I’m doing everything I can to contribute as much as I can.”

Consumers shared that asking for adjustments has had negative consequences such as exclusion from a service, activity or workplace, and having limiting assumptions made about them and their capacity, which has led to denial of choice, work, and opportunities, or put at risk their housing, as one consumer recalled:

“I needed to go into state housing. They have a strike system, I think it is discriminatory, you get punished/striked if you haven’t looked after their property in a particular way. I have depression and anxiety, and was unable to clean my house. I mask my symptoms very well, so they didn’t seem to think that I was unwell. […] I would get dr notes about house inspections to get extra time, they had to accept it, but they also gave me a hard time. I felt powerless knowing that it was going to impact their decisions.”

Fear of negative consequences has prevented some consumers from asking for accommodations.

“When you are having a mental health crisis or period, you don’t want to ask for too much, fearing that you will be pushed out of a service.”

Consumers told CoMHWA of the serious consequences of not receiving adjustments, including being unable to access supports and participate in essential activities and parts of life such as education and work, and being put in positions where their participation in those things without support damaged their wellbeing and recovery. In employment, consumers described having to use up more leave, and several consumers in casualised jobs spoke of having to weigh up the serious financial effects of missing work with the serious wellbeing effects of working without proper adjustments.

Consumers spoke about what receiving adjustments would do for them, and some shared experiences of receiving adjustments, which typically had a beneficial impact on their ability to maintain employment, complete study, access services and participate in other activities. Receiving adjustments in education helped one consumer to remain engaged, as a staff member gave extensions for however long was needed when she was in hospital. This helped her to be able to complete the course and to feel more hope:

“There’s a reason to live as there’s people like that in the world.”

Some explained that smaller adjustments earlier on enable them to participate more:

“When I am at low capacity […] working from home means I can produce (often better-quality work) than when I am in the office, and it means that I can work and contribute to the team on a day that I would otherwise have to take personal leave.”

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

CoMHWA feels that questions around the private and public life division and where the boundaries between the two begin and end are complex, and we are not able to comment on the potential legal implications of extending scope of duties to contexts beyond public life. If this scope of duty were to extend further, we predict that the courts will in practice be responsible for determining the balance of when an imposition of duty advances too far into people’s private lives.

CoMWHA feels that areas of public life already covered by the Act are too narrow, and that consumers should be able to engage in every aspect of life, without encountering discrimination, across contexts, systems and services. Consumers CoMHWA heard from underscored the necessity of adjustments in many contexts, some of them outside of those areas presently covered, such as NDIS engagements, housing, including private tenancies, participation in public spaces and community activities, and legal systems and context such as family court. Experiences of discrimination in services provided in private settings such as the home must be covered, for example, where a person receives care or support services in the home, or where a person has an interaction with police in their home.

More robust duties to provide adjustments are also needed to close gaps in currently covered areas of public life, for instance, extending to people who are accessing programs overseen by Australian government departments or educational institutions while overseas. One consumer told us of her experiences seeking accommodations for her disability while on a scholarship placement overseas through an Australian Government department. The student needed access to stimulant medication for ADHD, and requested access to standard arrangements for Department employees who need to access this medication, which was for the medication to be posted to the Australian consulate. However, she was denied because she was not considered a department employee. The program did not suggest accommodation plans for these circumstances. The student was left to suggest an accommodation plan without knowing what arrangements could be possible. The plan created meant she had to return to Australia frequently to refill her medication, and while the program covered the cost of flights, she was considered ‘on suspension’ and had to go without a stipend during these times.

CoMHWA recommends removing the word reasonable from the term ‘reasonable adjustments,’ and believes that this will have positive consequences for people with disability seeking adjustments.

Consumers found it is difficult to determine what adjustments are ‘reasonable’ or possible, exacerbated by general misunderstanding of the episodic nature of mental health challenges and fluctuating disability in society and in the legal system. In the words of several consumers we spoke to:

“The definition of ‘reasonable’ is where the contesting happens, and the onus of proof is on the person asking for adjustments.”

“[The current law is] too subjective. There needs to be less area for interpretation.”

Definition of and considerations for unjustifiable hardship

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

a. the Disability Royal Commission amendment as proposed b. a new definition of unjustifiable hardship c. other

Please expand on your response.

CoMHWA recommends the Act achieve fairness and transparency around claims of unjustifiable hardship by requiring duty holders to:

consult with people with disability and show how they considered the result of that consultation in their decision

consider impacts to the people with disability as well as impacts to themselves in their decision

explore and consider alternative options to remove or reduce hardship

document factors they considered, and give reasons for claiming unjustifiable hardship

provide records of documentation to people with disability requesting or requiring adjustments.

Consultation with the person with disability requesting adjustment (and any others concerned) should be timely, accessible, and facilitated in such a way as to support meaningful participation. Such a process will benefit duty holders also, as they will have the opportunity to develop a fuller understanding of the needs of the person requesting adjustment and what adjustments can look like. As one consumer put it:

“In terms of reasonable adjustments, I have a mental health issue, and my adjustments will be unique. It is quite complex for organisations to quantify this stuff, and the subjective needs of a person will be hard to gauge objectively. These adjustments should be co-produced by people with mental health challenges and the organisation, to get a sense of some of the adjustments that could be made.”

Genuine consultation would avoid misunderstanding and would prevent paternalistic assumptions being made on consumers’ behalf about what kinds of adjustments would benefit them. Several consumers had bad experiences with assumptions being made without their input:

“I’ve been dealing with the dispute recently […] and everyone keeps telling me that I can’t have a particular outcome. I have told, I think, probably 30 people that ‘I don’t want that outcome, that’s not the outcome that I want’.”

“I asked […] why I wasn’t getting enough shifts and she told me it was because the […] manager felt I wasn’t coping – the free reign of the […] manager to change my schedule each week according to her perception of what I need, without having a conversation with me, was incredibly disempowering and created additional stress, which worsens my condition.”

Exploration of alternative available measures to eliminate or reduce hardship should be required before final determinations are made, in consultation with the person seeking adjustment. Considerations of benefit to people with disability often judge them against an assumed ‘norm,’ where benefit might look like putting a person with disability in a position to meet norms. This maintains an ableist system and is a result of pervasive ideas of normality that, while socially constructed, are treated as natural and enduring, and those who do not embody the norm, such as people with mental health challenges, are treated as inherently deficient, and expected to attempt through whatever means necessary to make up for this and meet normative ideals.

Duty holders should have to provide and keep records, documentation and evidence of the process engaged and decisions made regarding adjustments and unjustifiable hardship. This includes documentation of factors considered in assessing hardship. Such factors should, additionally, be communicated transparently and immediately to the person asking for adjustment:

“If it’s in writing, then you have something to go off and compare against different things”

One consumer suggested that there be an obligation to consider impact to the person as well as the duty holder when exploring adjustments:

“Consider impact on persons health and emotional wellbeing with any adjustment initiated. What is the goal of proposed adjustment? What is it measured against?”

CoMHWA does not support the proposed alternative definition of unjustifiable hardship that requires weighing up benefit to the person or community against detriment and cost to any person involved. Our current social order is one in which people with disability are structurally disadvantaged, and, broadly speaking, people that do not have disability are in structurally advantageous positions by comparison. What is risked in this alternative definition of unjustifiable hardship is a state of affairs in which detriment is judged as something that compromises the ability of a particular duty holder or community member to maintain their relatively empowered social position through action that would combat the social

disadvantage of people with disability, and, if that detriment is decided to be too great, then the alternative offered is that nothing is done to address that social disadvantage.

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

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

CoMHWA broadly supports recommendations of the Disability Royal Commission, though we, and the consumers we consulted with, have reservations about the implications for consumers in disclosing mental health challenges to employers or prospective employers.

Consumers told CoMHWA they are concerned that disclosing mental health challenges and discussing potential adjustments during recruitment processes would result in discrimination, owing to the frequency with which they have experienced discrimination in recruitment and employment settings, and the fact that this is likely to lead to loss of work. One consumer observed that they are asked to disclose without surety of protection from discrimination:

“Nearly every job application I have filled out asks me about disability before I even get an offer.”

Another consumer commented:

“Employers should ask about reasonable adjustments only when people have the job, not before, as this could lead to discrimination.”

Consumers felt that the law could play a role in removing barriers in recruitment:

“There needs to be specific provisions in the act about ensuring transparency and accessibility in interviews processes.”

Consumers had also had negative experiences of disclosing mental health challenges in their workplaces, as this was accompanied by feelings of having to justify their ability to do their work. That said, that the introduction of positive duty to avoid discrimination may support the creation of workplace environments in which disclosure is not as likely to expose consumers to discrimination.

Consumers explained that discussing potential adjustments comes with unique difficulties for people with mental health challenges as their disability may be invisible. Not only do they need to disclose to their employer, but coworkers may question their adjustments when they don’t know the reasons for them:

“The invisible illness in the workplace means you look fine, so it is so hard to justify getting accommodations, they seem like ‘special privileges’.”

However, consultation and discussion about potential adjustments was seen to have benefits. Consumers noted that they themselves and their workplaces, do not have much understanding about what reasonable adjustments are possible. Consultation provides an opportunity to discover what is possible:

“I didn’t know what to ask for, and what was possible. They had no examples or experience about what reasonable adjustments would look like. No prior thinking in the past about it, and they had no idea where to start in setting adjustments up for me. It is a crisis for me to not get adjustments, and a crisis for the employers. In this situation I think it would be helpful to have examples or a guide for everyone to have a knowledge of what is reasonable.”

Consumers suggested that employers be proactive about seeking out and implementing adjustments. They suggested that employers having and providing examples of what is possible would be helpful, rather than the onus being on the person with the disability to know what is possible and request it. To support employers, consumers identified that clear guidance is needed for duty holders as to how to comply with anti-discrimination laws and implement adjustments.

Consultation would also avoid employers making assumptions about the capacity and abilities of employees, which several consumers had experienced in ways that disadvantaged them and blocked their opportunities for work:

“It’s like you’re not asked to give your own answer whether I can cope or not for myself, it’s someone made that.”

“They’ll talk about you perhaps and say she always gets upset or she’s always late. You know, we can’t give her that role.”

21. Are there other amendments to the Disability Discrimination Act that could support engagement between prospective or current employers and prospective or current employees to better understand the inherent requirements of a job?

CoMHWA recommends that the Act oblige employers to develop an understanding of the inherent requirements of a job and communicate that understanding clearly to employees and to prospective employees when they are advertising a job. To assist in this, CoMHWA recommends that guidelines be developed that assist with employer self-assessment of factors they should take into account when considering inherent requirements.

Given that employers can make reference to inherent requirements to decide whether a prospective or existing employee can meet them and do a job, cases where employees do not have access to this information mean they are not adequately equipped to represent their capability to meet such requirements – or make informed decisions about whether they are interested in a role. Some consumers had experiences of employers using inherent requirements as a kind of proxy for discrimination to prevent them from employment, as these quotes show:

“A major loophole is around the inherent requirements of a job. Adjustments don’t have to be made if people can’t meet the inherent requirements. […] This process is taken advantage of by employers. They extend these inherent requirements to block out people with disability.”

“Employers make the job tough enough, then employees just quit. They can put conditions in place where it is really hard to actually stay employed.”

It is essential that consumers have protections against potential discriminatory use of inherent requirements to exclude them from employment.

Consumers having access to independent pure advocacy services, and to legal advice, could support them to engage with employers to understand the inherent requirements of a job. CoMHWA heard from consumers about the power imbalance that affects engagement with employers or potential employers which means they feel less able to speak up, do not have full access to information, and are less able to self-advocate for their rights effectively. As one consumer said:

“We need more advocates to support you down that process because there’s fear and stigma around not saying anything.”

22. Should any other amendments be made to the definition of inherent requirements, including factors that should be considered when deciding whether a person could carry out the inherent requirements of a job?

CoMHWA recommends that the Act compel employers to make adjustments or consider the impact of adjustments before making an assessment about whether a person with disability could carry out the inherent requirements of a job.

Such an amendment would remove the onus on consumers to prove to employers their capabilities, or put in place their own accommodations that help them perform a role when employers are unwilling. Consumers told us of being put in the position of having to explain how they would make their own arrangements to support themselves to prove they could carry out the requirements of a role, with the implication that they would be judged as not capable otherwise:

“You have to convince them why your illness won’t hold you back or affect your work. You have to prove what you are going to do, to prevent your illness from being a problem for the employer or organisations.”

Requirement to consider the impact of adjustments should also apply when consumers are being considered for promotion. Consumers expressed that unwillingness to consider adjustments that could be made have also limited their career pathways, as they are not considered for promotion opportunities:

“Indirect discrimination includes blocking career progression. I’ve been told to leave, get workers comp etc, when having issues.”

CoMHWA further suggests that the review of the Act consider what amendments could be made to encourage employers to explore options around how they approach job design with accessibility, flexibility, and support built in, which could make for more options for consumers to undertake a variety of roles across different sectors and workplaces in open employment. In a previous consultation that CoMHWA undertook for our submission on Next Steps in Supported Employment, consumers expressed that increased flexibility acknowledges the fluctuating nature of their needs for support and was important in several areas, including in scheduling, shift/work hours, offering possibilities for job sharing, and having longer onboarding and probationary periods.36 This flexibility enables them to meet inherent requirements of the job and makes employment more accessible.

Exclusionary discipline and suspension

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

CoMHWA recommends:

defining exclusion and exclusionary discipline in the Act, as suggested by the Disability Royal Commission, to make it explicit that discriminating against a student with disability by suspending or excluding them is unlawful. Gatekeeping and other exclusionary practices should also be defined and included in how the Act approaches providing protections against discriminatory exclusion

that Act should require all publicly funded schools and tertiary institutions to adopt Universal Design for Learning principles. This will enable better supports for students with mental health challenges and psychosocial disability.

36 Consumers of Mental Health WA (2025). Next Steps in Supported Employment: Consumers of Mental Health WA. https://comhwa.org.au/wp-content/uploads/2025/07/SA-2025-10-Next-Steps-in-Supported-Employment.pdf

Students with mental health challenges and/or psychosocial disability experience disproportionate disciplinary practices, including exclusionary discipline.37 They often have experiences in schools where behaviours relating to their disability have been interpreted in ways that have caused them to be subject to discipline, including exclusionary discipline, rather than being offered supports that would have enabled them to remain engaged in education. Some consumers shared that getting needed accommodations in schools for children with mental health challenges is challenging and almost impossible without a (costly, hard to get) diagnosis. Not having a diagnosis also increases the likelihood that behaviours will be judged as warranting exclusionary discipline, rather than being seen as something to provide support around. One consumer wondered:

“Why can’t we just meet a child where they are at?”

The impact on consumers of lack of support in education is profoundly negative and enduring:

“I will be recovering from the impact on my sense of self, self-worth and identity for the rest of my life.”

Defining and introducing stronger protections against exclusion and exclusionary discipline will motivate schools to make adjustments and better support students.

CoMHWA believes that schools must be more appropriately resourced to offer the kinds of supports students need. One consumer found that more supports are available in private schools than in than public schools, and another consumer said that regional schools typically have fewer supports available – reflecting that the degree to which consumers are appropriately supported to fully participate in education depends on where they live and their financial background, which are factors beyond their control.

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

CoMHWA recommends that exceptions and limits that presently exist in the form of special measures be reviewed in the Act with a view towards consideration of how this can be amended to facilitate transition away from segregated education by 2051, in step with the recommendations of the Disability Royal Commission, and in alignment with the CRPD.

There are issues with present exemptions in the Act as special measures have been leveraged in Australia to perpetuate segregation in education:

“The DDA, in its enactment of section 45 on special measures as a spefic exempting provision from its anti-discrimination prohibitions, like section 22(3), appears to accept the construction of segregation

37 Parker, C., Whear, R., Ukoumunne, O. C., Bethel, A., Thompson-Coon, J., Stein, K., & Ford, T. (2014). School exclusion in children with psychiatric disorder or impairing psychopathology: a systematic review. Emotional and Behavioural Difficulties, 20(3), 229–251. https://doi.org/10.1080/13632752.2014.945741

on the basis of disability as a form of discrimination. The effect of section 45 is to permit segregated services, facilities and programs for people with disability, including in education, to meet ‘special needs’.”38

Current arrangements do not protect students with mental health challenges from the lifelong consequences of bullying.39 Studies show that segregation of students with disability is a factor increasing bullying.40

Special measures in this context enable the creation and implementation of learning and support plans and assistive measures developed with and agreed upon by students, and their carers, caregivers, or parents, and should only be implemented with the informed consent of student or family.

25. Should any of the state and territory provisions relating to exclusionary discipline be adopted in the Disability Discrimination Act?

CoMHWA recommends that the Act avoid emulating elements in some existing state and territory provisions relating to exclusionary discipline that reference, as grounds for exclusionary discipline, broadly defined disobedience, misbehaviour and inattention.

CoMHWA sees issues with aspects of many existing state and territory provisions and feels that these laws themselves should be reviewed and reformed, as recommended by the Disability Royal Commission.41 We take particular issue with elements across several existing State and Territory laws that interpret exclusionary discipline as acceptable in cases of broadly defined disobedience, misbehaviour, unacceptable behaviour, or wilful inattention or indifference to school work. Students’ disobedience, misbehaviour, inattention or indifference to school work may be interpreted as wilful, intentional, or disruptive when really it may stem from disability, mental health, or neurodiversity that is not recognised, or that the student has not received appropriate supports around. Students experiencing mental health distress may have their behaviours perceived as misbehaviour, as one consumer reflected:

38 Malaquias, C. (2022). Unrealised promises and hollow claims: Australia’s failure to enact its international obligations under the CRPD for the education of students with disability. Australian Journal of Education, 66(3), 235-250. https://doi.org/10.1177/00049441221127454 39 Department of Education and Training. (2015). A review of literature (2010-2014) on student bullying. Australia’s Safe and Supportive School Communities Working Group. 40 Cologon, K. (2020). Is inclusive education really for everyone? Family stories of children and young people labelled with ‘severe and multiple’ or ‘profound’ ‘disabilities.’ Research Papers in Education, 37(3), 395–417. https://doi.org/10.1080/02671522.2020.1849372 41 The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023). Final report volume 7: Inclusive education, employment and housing, part A. https://disability.royalcommission.gov.au/publications/final-report-volume-7-inclusive-education-employment-and-housing, p. 171.

“I was distressed, overwhelmed and struggling – this was perceived by teachers as attention seeking, disruptive, misbehaving, distracting other students. Blamey, shamey language.”

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

CoMHWA does not recommend that a different approach to exclusionary discipline be taken in the higher education sector.

People with mental health challenges and/or psychosocial disability need to be able to access education at all levels, and the significant existing barriers to their inclusion in and achievement of higher and vocational education and training42 must be removed, including discriminatory practices of exclusionary discipline.

Exclusion in these sectors can go unseen and unregulated, and intersects with problems of accessibility in ways that disadvantage consumers. One consumer shared an experience in which request for support was interpreted as proof that they did not have the ability to do the course. They returned to TAFE study after a long time out of the workforce and required a support worker to learn how to study via computer and support needs related to ADHD:

“I was told by the lady teaching it that she didn’t want me to have a support worker next to me because if you need a support worker then you obviously you can’t do the course.”

By contrast, some consumers told us of the effect of being appropriately supported in their studies in higher education, including through accessing accommodations, which supported them to remain engaged in and complete courses.

4.7 Improving access to justice

Offensive behaviour and vilification protections

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

CoMHWA supports the recommendations of the Disability Royal Commission that the Act include a provision on offensive behaviour.

42 Cage, E., Stock, M., Sharpington, A., Pitman, E., & Batchelor, R. (2018). Barriers to accessing support for mental health issues at university. Studies in Higher Education, 45(8), 1637–1649. https://doi.org/10.1080/03075079.2018.1544237 Moriña, A. (2022). When what is unseen does not exist: disclosure, barriers and supports for students with invisible disabilities in higher education. Disability & Society, 39(4), 914–932. https://doi.org/10.1080/09687599.2022.2113038

Many consumers described to CoMHWA their experiences of being harassed, excluded and forced to leave public spaces. People with specific, stigmatised diagnoses spoke of being subject to hate speech and other offensive behaviours, though consumers also noted that there is no non-stigmatised diagnosis. Several consumers had experienced hate speech and offensive behaviours in health settings from staff, sometimes in direct communications with them, with one consumer telling CoMHWA that they had been told they were a “revolving door patient.” Witnessing another person in the community being called names and not being helped has a significant negative impact. Consumers supported provisions similar to those found in other acts to improve protections against offensive behaviour, harassment, and vilification:

“We need to learn from other laws, such as racial vilification and religious protection laws. We have protections for that, and provisions for access to things like prayer rooms, etc. It should be the same for people with mental health challenges to have equity, and create laws based on those same principles for other areas.”

“The tacit exclusion from public spaces needs to be protected against.”

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

CoMHWA recommends:

that the terms of offensive behaviour and harassment be defined in a way similar to the definition in 18C of the Racial Discrimination Act 1972, in step with the recommendations of the Disability Royal Commission:

“It is unlawful to do an act, otherwise than in private if:

  • the act is reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person or group of people

  • the act is done because of the disability of the other person or because some or all of the people in the group have or are perceived by the first person to have a disability.”

the definition be supplemented with language that encourages interpretation of ‘reasonably likely’ that is consistent with interpretation of same in the case of Eatock v Bolt.

In Eatock v Bolt, Ms Eatock brought proceedings against Mr Bolt and the Herald Sun Newspaper (HWT) in relation to articles written by Mr Bolt that Ms Eatock argued contravene section 18C of the Racial Discrimination Act 1975 (Cth) as they “conveyed offensive messages about Aboriginal people who have fairer skin.” In determining “reasonable likelihood” of causing offence, the Court’s view was that “to import

general community standards into the test of the reasonable likelihood of offence runs a risk of reinforcing the prevailing level of prejudice.”43 The Court departed from the routine common law approach in Australia that takes as its model for reason the standard reasonable person from the community. Instead, the Court defined reasonable person in this case as being a reasonable person from the group of people purported to be offended. As stigma and prejudice against people with disability and people with mental health challenges is also very high, the definition of offensive behaviour and harassment should not rest on what a regular person who does not have disability or mental health challenges might ‘reasonably’ find offensive.

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

CoMHWA recommends that:

  • the Disability Discrimination Act adopt the exceptions similar to those in section 18D of the Racial Discrimination Act
  • people with disability are engaged at all levels of implementation, and review of the mechanisms to ensure that the legislation is working effectively.

Exceptions named in s18D of the Racial Discrimination Act aim to balance freedom of speech and the need to protect people from offensive behaviour and harassment. A similar balance will have to be found in order to better protect people with disabilities, including those with psychosocial disability or mental health challenges. While historically defamation laws have been the remedy for individuals whose reputations are damaged, these mechanisms have failed to protect people whose lives are impacted by offensive behaviours.44 Exposure to abuse and offensive behaviour is a significant driver of mental distress, having negative effects on mental health and wellbeing, help-seeking, and recovery.45 Political and social debates concerning freedom of speech have sometimes focused on the Racial Discrimination Act, and campaigns to amend, with the effect of eroding, section 18C, and CoMHWA is concerned that similar debates will result in eroded protections in the Act by comparison. Broadening the exceptions would likely water down the effect of any offensive behaviour provision and make the legislation ineffective in protecting people with disability from these behaviours.

43 Equal Rights Trust. (n.d.). Eatock v Bolt [2011] FCA 1103. https://www.equalrightstrust.org/ertdocumentbank/ERT%20Case%20Summary%20-%20Eatock%20v%20Bolt.pdf, p. 3. 44 Katterl, S. (2023). Words that hurt: Why mental health stigma is often vilification, and requires legal protection. Alternative Law Journal, 48(1), 47–54. https://doi.org/10.1177/1037969X221150135 45 Sickel, A. E., Seacat, J, & Nabors, N. (2014). Mental health stigma update: A review of consequences. Advances in Mental Health, 12(3). 202-215. https://doi.org/10.1080/18374905.2014.11081898

Submission to the Review of the Disability Discrimination Act 1992 38

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?

CoMHWA supports the recommendation of the Disability Royal Commission that the Act be amended to make it unlawful to vilify a person or group of people with disability on the basis of their disability or perceived disability.

Even though some criminal law now addresses conduct including vilification, WA does not currently possess such protections in state law. CoMHWA feels that more legislative protections for people with disability are desirable given the extent and impact of vilification they experience.

CoMHWA feels that the Act should be drafted under the assumption that WA will not implement the recommendations of the Review of the Equal Opportunity Act 1984 (WA)46 and ensure that Western Australians with disabilities have adequate protections against vilification. CoMHWA thanks the drafters of the Issues Paper for noting that Western Australia does not have adequate, robust vilification protections for people with a disability.47 The process of providing these protections has been delayed. There is no clear timeline for implementing the recommendations, and there is no guarantee that the Western Australian Government will implement all of the recommendations of the Review.

Legal protections from stigma must be extended through anti-vilification measures, as mental health stigma can amount to vilification because it has behavioural effects:

*“at the level of the individual, stigma has cognitive (thoughts), affective (feelings) and behavioural (actions) manifestations or dimensions. These behavioural features– such as statements or imputations that devalue a person based on stereotypes–are phenomena that may invite legal regulation, while cognitive and affective features would not. These behavioural expressions of stigma–statements and imputations– therefore may constitute what is termed ‘vilification’.”*48

Anti-vilification and offensive behaviour provisions must apply to organisations as well as individuals. Consumers told CoMHWA of the importance for provisions to cover the media, as they play a role in perpetuating stigmatising ideas about people with mental health challenges:

46 Law Reform Commission of WA. (2022). Review of the Equal Opportunity Act 1984 (WA): Project 111 Final Report. https://www.wa.gov.au/system/files/2022-08/LRC-Project-111-Final-Report 0.pdf, p. 230. 47 Australian Government Attorney-General’s Department, 2025, p. 70. 48 Katterl, 2023, p. 48.

Submission to the Review of the Disability Discrimination Act 1992 39

“Included these in offensive behaviour rules should be public institutions, media platforms, all orgs/NGOs, corporate orgs, banks. The locations where this happens need to be raised and addressed explicitly.”

“We need to start seeing [stigmatising/ hateful/ vilifying behaviours] as discrimination when it’s done in the media or by politicians. There needs to be accountability.”

Consumers who have highly stigmatised diagnoses such as psychosis spectrum disorders and personality disorders are often presented in public discourse and media as dangerous.49 One consumer shared:

“The media think anyone with [schizophrenia] is blowing their money 24/7 or murdering people 24/7 […] then we become withdrawn, because of our experiences.”

Protection from vilification should extend to online public spaces including comments sections of news and other articles, forums and social media platforms. One consumer described seeing an image of a person experiencing mental health and AOD challenges posted to a public social media group with accompanying text that spread stigmatising and hateful messages around mental health and alcohol and other drugs challenges. Such vilification continued in the comments section. The consumer spoke of the impact this had on her personally, as well as potential impacts in spreading hate among the community. The image did not appear to be posted with the consent of the person shown.

Consumers felt that, along with robust protections against hate speech, community education to address stigma was vital:

“Education, training, and TV advertisements are needed to raise awareness of the impact of language and hate speech.”

Services provided by police officers

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

CoMHWA recommends that specific amendments be added to the Act to cover policing and all aspects of the justice system, including protections for consumers engaging with police when they are suspected of or accused of crime. These should include:

  • leveraging introduction of positive duty to avoid discrimination to ensure this extends to cover police and justice systems. For policing, this includes providing access to support people such as

49 Hazell, C. M., Berry, C., Bogen-Johnston, L., & Banerjee, M. (2022). Creating a hierarchy of mental health stigma: testing the effect of psychiatric diagnosis on stigma. BJPsych open, 8(5), e174. https://doi.org/10.1192/bjo.2022.578

Submission to the Review of the Disability Discrimination Act 1992 40

communication partners, consumer liaisons and disability liaison officers to facilitate appropriate interactions

  • ensuring that a stand-alone duty to provide accommodations extends to provision of procedural accommodations for consumers and for people experiencing distress, crisis or unusual perceptions at the time of police contact including during an arrest

  • mechanisms increasing the transparency and accountability around police interactions with consumers including requirements for reporting data on interactions, including with those experiencing crisis, use of force and restrictive practices, transportation to hospitals, and any training that police receive to respond more appropriately

  • increased prohibitions on use of force and restraint and increased safeguards, including oversight and reporting around this

  • provisions aimed at reducing the frequency of police involvement in mental health transport, promoting the development of trained mental health outreach and response supports instead

  • legislating mandatory training and education for police on appropriate response, including working in trauma-informed ways, de-escalation and avoiding force and restrictive practices.

People with mental health challenges or psychosocial disability have the right to be free from discrimination on the basis of their mental health and disability during engagements with police and there should be no exceptions to this under circumstances where they are accused or suspected of a crime or involved in arrest.50 Ensuring the law provides protections from discrimination in policing for Aboriginal and Torres Strait Islander people with disability should be a particular priority, as the compounding effects of discrimination on the basis of race and disability mean that they are frequently criminalised, and their needs are likely to be overlooked in policing, as police view “certain kinds of behaviour through prisms of institutional racism and offending rather than disability.”51 The result is that they are “‘managed’ by criminal justice systems in lieu of being supported in the community. Systems of control rather than care or protection are being invoked for this group.”52

CoMHWA has heard from many consumers of instances of discrimination they have experienced engaging with the police. When consumers are suspects or accused of a crime, they treated in discriminatory ways –

50 World Health Organization and United Nations, 2023, pp. 114-116. 51 Baldry, E., McCausland, R., Dowse, L., McEntyre, E. & MacGillivray, P. (2016). ‘It’s just a big vicious cycle that swallows them up’: Indigenous people with mental and cognitive disabilities in the criminal justice system. Indigenous Law Bulletin, 8(22), 10-16. https://classic.austlii.edu.au/au/journals/IndigLawB/2016/3.pdf, p. 12. 52 Ibid.

Submission to the Review of the Disability Discrimination Act 1992 41

their behaviours, stemming from their mental health challenges and disability, are seen as aggressive or potentially violent, and they are subject to restrictive practices and force. Their experiences accord with those of many mental health consumers who have interacted with police, as Australian research shows, with “avoidable and disproportionate use of force” causing enduring distress and trauma.53

Such practices of policing are of particular concern considering police routinely respond when people are experiencing mental health crisis. They are involved with consumer transport to hospital and mental health services, and transport is a common setting for use of restraint against consumers. Interactions with police when consumers are experiencing crisis influence consumers’ engagement with mental health services, where many continue to experience force and restraint, involuntary treatment, coercion and seclusion.54 One consumer recounted having police come to transport her when she was put under an involuntary treatment order, and the police forced her to the ground and restrained her using handcuffs, which was humiliating. She didn’t want to go and was resisting in a non-violent way, and has no history of violence. She reflected that she just needed half an hour of time to de-escalate.

The overrepresentation of people experiencing mental health challenges in custodial environments, with more than half of prison entrants reporting that they had a mental health condition at some point in their lives,55 is indicative of an ongoing systemic failure to support their needs and to address discrimination against them. This review represents a major opportunity to address this issue.

The Act should seek to address discrimination in policing when people with mental health challenges are reporting crime or seeking justice. Consumers are not believed and are routinely dismissed in such circumstances. One consumer described having a report to the police not taken seriously after their house was broken into. CoMHWA’s Individual Advocacy service sometimes supports consumers who are reporting crimes, including assault, to the police, and our advocates say there are many barriers for consumers showing up at the police station to report crimes, including being actively discouraged from reporting when they do. Police are not equipped to support consumers experiencing mental health distress and trauma when reporting crimes. In one case, our advocates described how one consumer called police to attend when they had experienced assault, and, while police were supportive at the scene, they refused to speak with her and their attitudes transformed after the hospital spoke to them and divulged information about

53 Randall, R., Kennedy, H., Karanikolas, P., Bashfield, L., Rayner, A., Nguyen, F., Wu, L., Martin, R., Thomas, S., Maylea, C. & Members of the Been Apprehended and Leadership Group. (2024). ‘I was having an anxiety attack and they pepper sprayed me’: police apprehension in mental health contexts in Australia. Policing and Society, 35(1), 85–100. https://doi.org/10.1080/10439463.2024.2372354 54 Ibid. 55 AIHW (2023). The health of people in Australia’s prisons 2022. https://www.aihw.gov.au/reports/prisoners/the-health-of-people-in-australias-prisons-2022/contents/mental-health-and-self-harm/mental-health-condition

Submission to the Review of the Disability Discrimination Act 1992 42

the consumers’ mental health record. Advocates recalled several such circumstances, noting that health practitioners seem to believe that police have a right to such information when they do not.

Consumers told us of their experiences having their mental health weaponised against them in family court, or during interactions with police when reporting domestic violence, where consumers can be misidentified as perpetrators, or dismissed and not believed.

CoMHWA understands that defining police interactions with those suspected of or accused of crime as services comes with difficulties when it comes to how this is interpreted in courts. Interestingly, the Productivity Commission’s report on government services defines all community members as recipients of policing services, and further defines that “Some members of the community have direct dealings with the police and can be considered specific client groups, for example […] people suspected of, or charged with, committing offences.”56 People who are suspected or accused, and people custody are owed dignity, rights, and service that is free from discrimination. If the Act is amended to encompass the Disability Royal Commission’s recommendation that services provided by police in the course of performing policing duties and powers be included in the definition of services, CoMHWA feels it is necessary to add explicit mention that this covers suspects and those accused of crime in order to reduce statutory interpretation problems.

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

CoMHWA recommends against suggestions that any aspect of policing and justice should be excluded from application of the Disability Discrimination Act.

We are concerned that a section on policing and justice will be added to the Act only to be rendered ineffective by a suite of exemptions and exclusions. We caution against arguments that justify exceptions be made in policing people with mental health challenges on spurious logic that constructs people with mental health challenges as more dangerous or as more likely to be aggressive and violent.57 Research suggests that a significant proportion of police do view people with mental health challenges as dangerous and that this influences their responses.58 People with mental health challenges make up a significant proportion of fatal police shootings in Australia, a fact that has remained unchanged for decades despite changing social attitudes to mental health, introduction of training for police, and the decline in overall

56 Productivity Commission. (2025). Context - Size and scope: Client Groups. In: 6. Police Services. https://www.pc.gov.au/ongoing/report-on-government-services/2025/justice/police-services/ 57 Seeman, N., Tang, S., Brown, A. D., & Ing, A. (2016). World survey of mental illness stigma. Journal of affective disorders, 190, 115–121. https://doi.org/10.1016/j.jad.2015.10.011 58 Miles-Johnson, T., & Morgan, M. (2022). Operational response: Policing persons with mental illness in Australia. Journal of Criminology, 55(2), 260-281. https://doi.org/10.1177/26338076221094385

Submission to the Review of the Disability Discrimination Act 1992 43

number of fatal police shootings.59 The assumption that people with mental health challenges are dangerous pervades ableist approaches to policing and directly contributes to use of force against consumers.60 The implications should current practices be allowed to continue is that consumers will continue to experience force, harm, trauma, and, in some cases, fatal injury.

4.8 Exemptions

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

CoMHWA recommends that the Superannuation and insurance (Section 46) exemptions should be narrowed to place limits on the ability of insurers to price people with psychosocial disability and mental health challenges out of superannuation and insurance products altogether.

Mental health consumers are significantly disadvantaged by section 46, which allows superannuation and insurance companies to exclude them or make coverage under their premiums prohibitively expensive. Mental health consumers are particularly adversely affected by the provision that discriminates based on a person having ever been diagnosed with particular mental health conditions. Many consumers are hastily diagnosed in rushed inpatient or emergency settings in order to get them an admission or access to services. These diagnoses may be later amended or changed, but remain in the consumer’s diagnostic history. CoMHWA hears from a great number of consumers who would like to challenge or remove diagnoses from their records, but this is very challenging to do. It limits consumers’ ability to travel, affects their choices to take out home loans and significantly impacts financial planning for consumers with children. One consumer told us of recent distress this had caused:

“Yesterday I tried to get life insurance and they asked, you know, do you have mental health issues? Have you ever had suicidal ideations? Have you ever attempted suicide? So do I lie? Do I lie and say I haven’t done this so that I can protect my family?”

Furthermore, research has highlighted widespread discrimination in the insurance sector with consumers facing “increased premiums, excessive restrictions on their policies and outright rejection of their

59 Dodd, S., Morgan, M., Weir, B. & Bowyer, J. (2024) Police Use of Force in Mental Health Crises: An Analysis of Coronial Inquest Findings from Australia. International Journal for Crime, Justice and Social Democracy. DOI: 10.5204/ijcjsd.3560 Clifford, K. (2021). Introduction. In: Policing, mental illness and media: The framing of mental health crisis encounters and police use of force, pp. 1-40. Springer International Publishing AG. 60 Rowe, S., Dowse, L., Baker, M., & Baldry, E. (2022). Policing disability: alliance building, police divestment and community investment. Current Issues in Criminal Justice, 34(2), 171–187. https://doi.org/10.1080/10345329.2022.2029084

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applications and claims when a history of mental illness is disclosed.”61 The AHRC should be empowered to investigate and take action on suspected discrimination in insurance.

Facilitating full and equal access to appropriate and relevant health care for people with mental health challenges requires preventing practices in insurance coverage that limit access to mental health services on an equal basis with other health services, or that place limits on benefits paid out from accessing mental health care compared to general health care.62 Private health insurance operates on a model that is an improvement on the life insurance model because it does not exclude or charge higher premiums to those with something that might be classed as a ‘pre-existing condition,’ though consumers hoping for appropriate cover in the private system for their mental health care are likely to pay more. Private hospital insurance for people trying to access mental health inpatient care is only accessible in the most expensive ‘top tier’ plans.

CoMHWA recommends that the Acts done under statutory authority (Section 47) exemption: “an industrial instrument, order, award or determination of a court or tribunal to the extent to which it relates to capacity-based salary or wages for people with disability” should be altered to promote economic equality.

CoMHWA supports increases to wages for people with disability, as outlined in the national blueprint on Economic Justice for People with Disability.63 People with disability are as likely as the rest of the population to have an income, but report significantly lower satisfaction with their pay, and a greater proportion of people with psychosocial disability in particular have a low income compared to the rest of the population.64

CoMHWA recommends that the Infectious diseases (Section 48) exemption be reformed to with a view to protecting those who might have increased vulnerability while better guarding against use of this exemption as a tool of persecution and stigma.

People living with HIV have experienced profound distress, which negatively affects their mental health, because of the use of exemptions such as this to exclude them from public life, spaces, and supports, and

61 Public Interest Advocacy Centre (2021). Mental Health Discrimination in Insurance October 2021. https://jec.org.au/wp-content/uploads/2021/11/21.11.04-PIAC-Report Mental-Health-Discrimination-Insurance.pdf, p. 19. 62 World Health Organization and United Nations, 2023, p. 77. 63 Community Mental Health Australia, People with Disability Australia, Disability Advocacy Network Australia, First Peoples Disability Network, National Ethnic Disability Alliance, Children and Young People with Disability Australia, Australian Federation of Disability Organisations (2025). Economic Justice for People with Disability: A National Blueprint. https://apo.org.au/sites/default/files/resource-files/2025-04/apo-nid330668.pdf 64 Buckland, A., Dockery, M., Duncan, A., Sanchez Arenas, V., Sotirakopoulos, P., Twomey, C. & Loan Vu, L. (2024). Employment and Disability in Australia. Bankwest Curtin Economic Centre. https://bcec.edu.au/assets/2024/03/BCEC-Employment-and-disability-in-Australia-2024-WEB.pdf, p. 66.

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they still experience issues in care with health professionals who do not have strong understanding of appropriate treatment and care while avoiding discrimination. Mindfulness should be paid in this section to the fact that there are now many cases where a person is unable to transmit a disease (because, for instance, they have achieved an undetectable viral load).

CoMHWA recommends removing the Migration (Section 52) section entirely.

Turning away migrants on the basis that they have disability perpetuates stigma that frames people with disability as a social burden. The section relies on a migrant health requirement and its associated assessment of ‘significant costs’ associated with migrants’ access to (or the cost of their hypothetical access to) health and community services. Mental health consumers are significantly adversely impacted by section 52, as it allows for the cancellation of visas of people who develop mental health challenges while living and working in Australia. It also allows for cancellation of the visas of otherwise eligible families whose children, born in Australia, develop a disability or health condition, because of the inclusion of education support for children in the ‘Significant costs threshold.’ This section has a significant adverse effect on help-seeking behaviours in migrant communities, is a threat to the human rights of children born in Australia, and jeopardises the wellbeing and unity of families.65

34. Should the Australian Human Rights Commission be given the power to grant special measures certificates?

CoMHWA recommends that the AHRC develop a helpline or service aimed at providing information and answering enquiries relating to special measures rather than granting special measures certificates.

CoMHWA understands that duty holders seek peace of mind that the special measures they are undertaking are not unlawful, however, the existence of such certificates could result in misunderstandings among the community that a certificate is a necessary pre-requisite for the enacting of special measures. Such a perception could prevent duty holders from undertaking special measures, or could result in undue questioning of duty holders, which builds reluctance to continue with special measures. This is of concern, for instance, for Lived Experience/Peer workers, who are employed in designated roles. Organisational readiness to employ them is key to development of the Lived Experience/Peer workforce. It could also hamper the developing of grassroots community groups such as groups of consumers who self-organise to develop support groups or advocate for their rights – as well as deterring organisational support of such

65 Welcoming Disability. (2023). Review of Australia’s Significant Costs Threshold. https://alhr.org.au/wp/wp-content/uploads/2023/11/Reduced-Welcoming-Disability-Submission-to-DoH-2023-ReviewF4.docx.pdf

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groups. Instead, something like a helpline and email service responding to enquiries relating to special measures would provide peace of mind without generating confusion.

35. Should a definition for special measures be added to the Disability Discrimination Act?

CoMHWA recommends that a flexible definition of special measures that emphasises these are measures aimed at promoting inclusion, equality and equity of consumers (and all people with disability) be added to the Act.

This would assist with consistent interpretation and understanding that these are positive measures. The definition must be flexible enough to remove barriers to groups of people with disability self-organising to meet their own needs within the community, as has been a strong tradition in the mental health consumer rights movement – and something that enabled to creation of CoMHWA itself.

36. Should a definition for temporary exemptions be added to the Disability Discrimination Act?

CoMHWA recommends that:

  • any definition of the temporary exceptions under the Act define the term ‘temporary,’ including limiting any exemptions made to single 5-year terms
  • people with disability should be engaged in the decision-making processes concerning exemptions.

Current temporary exceptions are not acting in the manner intended by the original drafters of the legislation in that the temporary exception system has become a permanent system of exception with a periodic review. CoMHWA notes as a case in point the decision of the Australian Human Rights Commission concerning the Australasian Railway Association Exemption Application (2020).66 Failure to make public transport safe and accessible affects consumers. Some consumers are prevented from driving due to the side effects of some medications or the symptoms of their mental health challenges.67 Some medications can significantly impact gross motor skills and reaction times. Mental health challenges can affect a person’s ability to drive through symptoms such as persistent anxiety (panic attacks) or unusual visual perceptions. Australia surveys looking at public transport useability have shown that only 42% of people

66 Australian Human Rights Commission. (2022). Notice of decision on application for temporary exemptions: Australasian Railway Association. https://humanrights.gov.au/sites/default/files/decision 3.pdf 67 Dun, C., Palmer, C., & Turville, M. (2025). Driving a motor vehicle and living with a mental health condition: The personal and professional experiences of consumer lived experience staff. Australian occupational therapy journal, 72(2), e13000. https://doi.org/10.1111/1440-1630.13000 Austroads. (2022). 7.3 Medical standards for licensing. In: Assessing Fitness to Drive for commercial and private vehicle drivers. https://austroads.gov.au/publications/assessing-fitness-to-drive/ap-g56/psychiatric-conditions/medical-standards-for-licensing-8##ref-psych

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with psychosocial disability reported being able to use all forms of public transport without difficulty, the lowest percentage of any disability group.68

In the decision, the then-President of the AHRC Emeritus Professor Rosalind Croucher remarks that by the time the decision was handed down, “The members of the [providers of public transport] will have had 24 years to achieve compliance with the Transport Standards, and 16 years to achieve compliance with the Premises Standards.”69 In making their decision, the Commission relied heavily on the recommendations of an expert report prepared for the Commission by a representative from the Equal Access Group. While the report acknowledges submissions from bodies representing people with disability, it does not engage meaningfully with the lived experiences of consumers.70 Consumers, and people with disability more generally, should have their right to meaningful participation in the decisions that affect their lives enshrined in law, including when determining the outcomes of exemptions to laws meant to enable their full and equal inclusion in society.

37. Would you recommend any changes to the legislative process of granting temporary exemptions?

CoMHWA recommends that:

  • provisions be created requiring that those likely affected by the granting of a temporary exemption are engaged in consultation
  • in deciding whether to grant an exemption, the AHRC should publish the application on their website and call for public submissions, and should also publish the outcome of decisions.

These changes will make for more robust, publicly accountable process where those affected by the granting of temporary exemptions have the opportunity to have input into factors affecting their lives.

4.9 Modernising the Disability Discrimination Act

Assistance Animals

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

68 Australian Institute of Health and Welfare. (2024). Public transport usability. https://www.aihw.gov.au/australias-disability-strategy/outcomes/inclusive-homes-and-communities/public-transport-usability 69 Australian Human Rights Commission, 2022, p. 55. 70 Equal Access. (2021). ARA Temporary Exemptions Assessment. https://humanrights.gov.au/sites/default/files/equal access expert report 0.pdf

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CoMHWA recommends that:

  • the Act be amended to clarify that assistance animals includes animals assisting people with psychosocial disability and/or mental health challenges
  • consistent national standards for training, certification, and identification of assistance animals are created through close consultation with consumers, people with disability, mental health and disability organisations.

People with psychosocial disability encounter many barriers, restrictions and inconsistencies that get in the way of them being able to reliably access support from assistance animals. There is little consistency in terminology, legislation, access pathways, training and tracking of assistance animals, which increases the likelihood that people with assistance animals will be denied access to public spaces. For people with psychosocial disability, the lack of public awareness of assistance animals for people with psychosocial disability and widespread mental health stigma mean they face scrutiny and encounter increased questioning over public access.71

CoMHWA would support clearer description in the Act around what constitutes evidence of training and evidence/standards of hygiene and behaviour but it is important that these do not render access to assistance animals more difficult for people with psychosocial disability. As we state in our Submission to Consultation on the Assistance Animals National Principles, nationally consistent accreditation for assistance animals must be developed through co-design that includes with people with psychosocial disability. We also recommended a consistent national Public Access Test that is designed to be adaptable to the particular animal involved and the tasks it is trained to do.

A national card for assistance animals would help enable access and should be backed by legislative provision that this card functions as sufficient evidence to enable people with disability and their assistance animals to go about their lives in public unimpeded. This card should identify the animal and the handler, but avoid mentioning sensitive details of a person’s disability or mental health challenges.

39. Would legislative amendments or guidance materials be helpful to balance flexibility and certainty, or a mixture of both?

CoMHWA recommends that a mixture of legislative amendments and guidance materials be created to develop a unified national approach to assistance animals while ensuring that there is strong support for people with disability, community members, and duty holders to understand what the law means for them.

71 Consumers of Mental Health WA (2025). Submission to Consultation on the Assistance Animals National Principles. https://comhwa.org.au/wp-content/uploads/2025/06/SA-2025-8-Assistance-Animals-National-Principles.pdf

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CoMHWA supports the Joint Statement Calling for People with Disability’s Access to Assistance Animals to be Protected, which calls for the establishment of a National Assistance Animal Framework to meet the needs of people with disability, and remove inequitable access barriers.72 Creating and putting into practice National Assistance Animal Principles is a good step but they will not be influential in supporting a nationally consistent approach unless they are backed up by legislative provisions to ensure accountability.

40. Should specific training organisations be prescribed under the Disability Discrimination Regulations?

CoMHWA recommends that the Act avoid naming specific training organisations.

This will limit degree to which the Act is future proof. People with psychosocial disability have very limited options in choosing training providers because of the dearth of providers that have the expertise and capacity to train assistance animals for people with psychosocial disability, such as psychiatric assistance dogs, and should not be limited further to a list of organisations that may not all offer relevant training.

Disability action plans

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

CoMHWA recommends specifying minimum requirements for disability action plans (DAPs), including:

  • development of action plans in collaboration with people with disability in the duty holder’s community, workplace, service user/consumer base
  • compliance with relevant Disability Standards, including strategies for improving compliance
  • strategies to meet positive duty obligations
  • inclusion targets, incorporating targets for inclusion of people with psychosocial disability
  • inclusion targets at the level of leadership/governance for organisations above a specific size
  • goals for ongoing collaboration and engagement with people with disability and organisations led by people with disability

72 Australian Autism Alliance, Children and Young People with Disability Australia, Community Mental Health Australia, Disability Advocacy Network Australia, Down Syndrome Australia, First Peoples Disability Network (Australia), Inclusion Australia, Justice and Equity Centre, National Mental Health Consumer Alliance, People with Disability Australia, Physical Disability Australia, and Women with Disability Australia (2025). Joint Statement Calling for People with Disability’s Access to Assistance Animals to be Protected. https://pwd.org.au/joint-statement-calling-for-people-with-disabilitys-access-to-assistance-animals-to-be-protected/

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  • specific and measurable goals
  • clear timelines for achievement of goals
  • plans to monitor, evaluate and report on DAPs.

The minimum requirements should adapt to the size and scope of an organisation, department, service or enterprise undertaking a DAP. Minimum requirements give clarity for organisations about what action plans entail and encourage meaningful progress towards inclusion.

It is essential that minimum requirements centre the involvement and ongoing influence of people with disability, not only in the organisation’s activities, but in the development and evaluation of DAPs themselves. Furthermore, minimum requirements should reflect the intention to promote inclusion and participation of people with disability across the diversity of their identities and disability. This will prevent action plans that view inclusion and accessibility in narrow terms that are not in touch with the diverse needs of people with disability, including people with mental health challenges and psychosocial disability. One study of Australian local government DAPs, for instance, found that the dominant focus of most of these was on making sure the built environment was suitable for people with disabilities.73 While this is important, DAPs must also address the many other barriers to inclusion and participation in social life.

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

CoMHWA recommends that the AHRC should be able to review and reject action plans that do not meet minimum requirements.

Timely advice should be provided on rejected plans so that organisations can develop plans that meet requirements. The AHRC should be appropriately resourced to undertake this work.

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

CoMHWA recommends that there be a set period of time covered by action plans, as this would promote the creation of effective, contemporary plans and encourage timely progress towards goals.

Introducing set time periods would provide added impetus for duty holders to be accountable to plans and commit to relevant deliverables. This would avoid the plans becoming tokenistic symbols of commitment to the inclusion of people with disability. With set time frames should come mandatory reporting requirements on the progress and outcomes of expiring plans.

73 McGrath, R. (2008). What Do They Say They Are Doing? Thematic analysis of local government Disability Action Plans. Annals of Leisure Research, 11(1–2), 168–186. https://doi.org/10.1080/11745398.2008.9686791

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44. Are there any other changes to the action plan process that you would recommend?

CoMHWA recommends that the action plan process ensure accountability through establishing mandatory public reporting on progress against minimum required targets and goals.

As the AHRC already maintains a register of DAPs, one option is to develop this register to include key outcomes or regular reporting on progress of DAPs, including self-reporting. Encouraging this level of transparency is a potential mechanism for improving both plans and duty holders’ commitment to implementing them. If reporting criteria were linked to minimum requirements, this would also provide a mechanism for aggregation of data across all plans to understand the overall impact of DAPs.

Disability standards

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

CoMHWA recommends that:

  • the AHRC be empowered and resourced to function as an effective regulatory body that investigates compliance, undertakes audits, prompts enforcement action, and issues notices of compliance and notices of infringement. Create sanctions to enforce real consequences for duty holders when they are not compliant
  • a requirement for duty holders to engage in regular public reporting on compliance with Disability Standards be introduced.

A public register naming those who have been found to be non-compliant could increase surveillance and visibility to create public pressure on duty holders to comply with Disability Standards.

The introduction of a positive duty, already discussed in this submission, means that enforcement of compliance with Disability Standards does not rest on the making of complaints when a duty holder does not act in accordance with these. Yet, compliance still requires an effective mechanism/body to undertake investigation, monitor reporting, and take action when a duty holder is not compliant.

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

CoMHWA recommends that the Act be amended to require self-reporting by relevant duty holders on compliance with Disability Standards in disability action plans.

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

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Duty holders should receive thorough guidance on reporting on the Disability Standards in their disability action plans. This will assist in achieving accountability and transparency. Such guidance could be included as part of minimum requirements guidance around DAPs. Guidance should be tailored to the operations of specific industries and sectors so that they understand what meaningful self-reporting on Disability Standards looks like for them.

4.10 Further options for reform

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

49. What additional guidance materials should be provided to the community, including duty holders, about the operation of the Disability Discrimination Act or specific amendments proposed in this paper?

CoMHWA recommends that information and guidance materials that explain the operation of the Act and proposed amendments in terms of implications for people with mental health challenges and/or people with psychosocial disability be developed (as part of a suite of materials tailored for other groups of people with disability) in order to support consumers’ understanding of their rights.

Accessible materials including written documents (including easy-read versions), informational videos, webinars, trainings and information sessions should be developed specifically for consumers as a matter of priority.

“It’s gotta be easy to read and it’s gotta be in formats for all disabilities.”

“We need more public training and increase our understanding of the health rights, where to make complaint and how to find the information etc.”

Consumers are often the last to get information, something that can be a consequence of discriminatory assumptions that consumers cannot understand information or make decisions for themselves. Not having information leads to lack of accessibility, causes confusion and distress, and compromises recovery – it can have especially dire consequences in the context of health services when consumers do not get information essential for them to make informed decisions about how to manage their wellbeing.

CoMHWA’s individual advocates suggested that posters displayed prominently in public settings with accessible, easy to understand information about relevant disability standards, charters, rights, and protections, including protections under the Act, would enable both duty holders and consumers to better understand responsibilities and rights. One consumer shared a positive example of when accessible, clear information about complaints pathways had helped with their engagement:

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“A hospital I attended had a clear pathway of information, a flow chart of how it will be managed and where it will be escalated to.”

CoMHWA recommends that materials for duty holders with specific information about how they can meet their responsibilities under the Act when engaging with people with mental health challenges and/or psychosocial disability be developed to promote stronger understanding of how to include and support consumers.

Consumers suggested that materials including guidelines and training opportunities around positive duties and adjustments, should be tailored for relevance to duty holders in different industries or contexts. Duty holders would benefit from guidance around how accessibility considerations can meet the needs of people with psychosocial disability or mental health challenges, as consumers commented that many fail to explore this even when they make an effort to be accessible for some people with physical disability:

“We need less assuming that broad accessibility things are enough for everyone, especially when there is such a focus on physical disability. In conversations about accessible workplaces – why don’t they engage with sensory needs like adjustable lighting and quiet places?”

“They build ramps for people with wheelchairs, but they are less likely to build quiet places for people […] at the courts. A quiet place where someone is sitting like a peer worker. There needs to be peer workers for people […] If you have mental health issues. They’re not seeing how important it is for us to be supported.”

Examples and case studies of how the Act protects people with lived experience of mental health challenges from discrimination, of times when the Act has been used to access adjustments for consumers, and other ways the Act has had outcomes for consumers would provide helpful and practical guidance for consumers, advocates and duty holders. Examples should cover what the application of the law looks like across different areas of public life.

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

CoMHWA recommends that provisions to protect against algorithmic discrimination be written into the Disability Discrimination Act, including:

  • as part of positive duties, ensuring transparency around the coding of AI decision-making tools
  • empowering any statutory body that is empowered to investigate and enforce the Act to be able to investigate and prosecute those who use discriminatory AI decision-making tools.

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This is not only necessary for future-proofing, but would protect against discrimination already being experienced by people with disability. The Australian Human Rights Commission has identified that algorithmic decision-making poses a threat to the human rights of Australians and has produced technical advice for duty holders.74 Lorraine Finlay, Australian Human Rights Commissioner, identified that current legislation has not gone far enough to protect Australians against algorithmic bias and recommends that rigorous testing for bias in AI tools be established.75 Greater transparency concerning data upon which AI tools are based, the criteria they are programmed to draw from, and their outcomes is a key step towards identifying and protecting against bias. Furthermore, coding that enables transparency concerning reasoning around outputs/decisions made by AI tools is desirable. AI tools give outputs, but do not explain the reasons for those outputs, making it hard to understand what criteria and data has been drawn from and ascertain the presence of bias.76

While it may be technically unlawful to discriminate in this manner under the current legislation, the cost and time burden on complainants looking to gather evidence is significant, which poses barriers to ensuring real accountability.77 People who have experienced algorithmic decision-making discrimination have instead resorted to public and political campaigns to address the issue.78 A few examples of challenges posed by the use of artificial intelligence (AI) across different contexts include:

  • Use of AI hiring systems for recruitment. Many Australian companies are now using these systems, and a recent Australian study has shown they “create a new form of systemic discrimination [… and] offer fresh opportunities for employers to engage in intentional discrimination.”79

  • AI in government assessment processes around risk, eligibility and fraud. These are sites of potential discrimination, and algorithmic assessment of welfare payments used in what has been called ‘Robodebt’ had dire consequences for many people with disabilities, some of whom died by suicide after they were assessed by an algorithm to have been overpaid by Centrelink.

74 Australian Human Rights Commission. (2020). Technical Paper: Using artificial intelligence to make decisions: Addressing the problem of algorithmic bias. https://humanrights.gov.au/sites/default/files/document/publication/final version technical paper addressing the problem of algorithmic bi as.pdf 75 Dhanji, K. (2025, August 13). Use of AI could worsen racism and sexism in Australia, human rights commissioner warns. The Guardian. https://www.theguardian.com/technology/2025/aug/13/ai-artificial-intelligence-racism-sexism-australia-human-rights-commissioner 76 Blackham, A. (2023). Setting the Framework for Accountability for Algorithmic Discrimination at Work. Melbourne University Law Review (47)1, 63-113. https://law.unimelb.edu.au/ data/assets/pdf file/0010/4805047/02-Blackham-62.pdf 77 Sheard, N. (2025). Algorithm-facilitated discrimination: A socio-legal study of the use by employers of artificial intelligence hiring systems. Journal of Law and Society, 52(2), 269–291. https://doi.org/10.1111/jols.12535 78 van Toorn, G., & Scully, J. L. (2023). Unveiling algorithmic power: exploring the impact of automated systems on disabled people’s engagement with social services. Disability & Society, 39(11), 3004–3029. https://doi.org/10.1080/09687599.2023.2233684 79 Sheard, 2025.

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  • Use of algorithmically generated disability support plans in the NDIS that use data-based models to classify the support needs for participants based on diagnosis and demographic information. These are passed on to participants with minimal human oversight. Participants report that this has led to inadequate funding and support plans, dubbing the scheme ‘RoboNDIS.’80

  • Algorithmic tools used to gauge risk assessment in child welfare matters. This has led to discrimination against parents with lived experience of mental health challenges, resulting in high levels of state intervention into the lives of families.81

  • Use of AI in forensic psychiatry contexts. This has the potential to reinforce discriminatory practices and narratives about mental health challenges, increasing the risk of criminalisation of forensic psychiatry consumers.82

CoMHWA recommends that the Act bring in current national mental health standards or develop new mental health standards to encourage accessible, quality mental health services across Australia and enable enforcement when discrimination and breaches happen.

For many consumers, mental health services are not affordable, accessible, or appropriate. Introducing Standards could drive reform, ensuring the right to the highest attainable standard of mental health care.83

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

CoMHWA recommends that:

  • the AHRC be resourced and empowered to function as an effective regulatory agency, and the Act must be amended to promote the empowerment of the AHRC to the full extent of its scope to do so. This should include statutory powers to initiate investigations into systemic discrimination without requiring a complaint be made to trigger an investigation

80 van Toorn, G. (2024). United against algorithms: a primer on disability-led struggles against algorithmic injustice. ARC Centre of Excellence for Automated Decision-Making and Society, University of New South Wales, and Data Justice Lab, Cardiff University. https://doi.org/10.60836/aweg-0922 81 van Toorn, 2024, pp. 12-13. 82 Tortora L. (2024). Beyond Discrimination: Generative AI Applications and Ethical Challenges in Forensic Psychiatry. Frontiers in psychiatry, 15, 1346059. https://doi.org/10.3389/fpsyt.2024.1346059 83 Song, Y. J. C., Rosenberg, S., Smith, B., Occhipinti, J. A., Mendoza, J., Freebairn, L., Skinner, A., & Hickie, I. B. (2022). Missing in action: the right to the highest attainable standard of mental health care. International journal of mental health systems, 16(1), 26. https://doi.org/10.1186/s13033-022-00537-8

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  • the AHRC should be obliged to work in ways that offer appropriate, trauma-informed support for consumers engaged in complaints processes.

The limitations of the AHRC create issues with the effective functioning of the Act. In the words of one consumer:

“[We need] an overarching body to ensure [anti-discrimination actions] are taking place and overseeing it so that it’s done right.”

CoMHWA’s individual advocates and the consumers we spoke with who had explored complaints through this pathway noted that the process to make complaints and seek redress through the AHRC is slow to the point of taking several years, in some cases, to be resolved. As one advocate said:

“When something is causing harm now, a consumer can’t wait for a resolution many years later.”

CoMHWA has concerns about the ability of the AHRC’s conciliation process to reliably meet the needs of consumers. While conciliation offers some benefits to consumers and duty holders, it also carries risks for consumers when conciliation is the only avenue available to them.84 The power imbalances that consumers encounter when making complaints can compromise effective conciliation. Consumers experience a pressure to settle, which is compounded by lack of options for further action should the conciliation process be terminated. Given that in 2023-4, only 33% of complaints to the AHRC are resolved by conciliation, the limited avenues beyond this implies many consumers go without resolution when they have experienced discrimination. If the issue is not resolved and the conciliation is terminated, the consumer has no options but to take the matter to a federal court, and seek costly legal representation and advice. Duty holders are likely to have access to more resources to access legal representation and advice. Conciliation process satisfaction is lower for complainants than for respondents according to data across the past few years of AHRC annual report, and more respondents rate the conciliation process as fair than do complainants,85 which points to the need to explore how conciliation processes can be undertaken in more equitable ways.

Legislating to increase the empowerment and resourcing of the AHRC so that it can function as a true regulatory agency and ensure compliance and accountability around positive duty and adjustments would improve oversight and adherence to the law. In the words of one of the participants in our consultation:

“[It] cannot become another toothless overseeing body.”

84 Butler, K. (2025). Conciliation in Australian Civil Justice: An Evidence Snapshot. https://lawfoundation.net.au/wp-content/uploads/2025/05/Conciliation-in-Australian-Civil-Justice An-evidence-snapshot FINAL.pdf 85 Australian Human Rights Commission. (2025). Management of Complaints by the Australian Human Rights Commission. https://www.anao.gov.au/work/performance-audit/management-of-complaints-the-australian-human-rights-commission

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CoMHWA’s individual advocates told us that while settlement and conciliation processes work for some consumers, others want justice that goes further in more serious cases of neglect or misconduct. Consumers expressed the distress caused by lack of accountability and delays to justice:

“Selective enforcement of laws makes it difficult for people with disabilities to have justice in a range of areas.”

Increasing funding for dedicated advocacy services and legal services will give stronger support for consumers to raise and navigate complaints and access the legal system when they need to move beyond conciliation to get justice. In the words of one consumer:

“I like the idea of, you know, when you see on TV […] you get told you have the right to a lawyer, and if you don’t have one, they will be appointed for you. Can’t we just copy that [into discrimination law]?”

The AHRC should have the ability to be involved with and initiate litigation. The current system places the duty on individuals to bring complaints, and representative complaints/proceedings are rare, so it lacks effective options for recognising and addressing collective and community concerns in eradicating discriminatory practices. There is a need for “an enforcement model where a regulatory agency has multi-faceted functions, including the capacity to initiate litigation where necessary.”86 If the AHRC had the power to be involved with and initiate litigation, it would be able to address broader issues of systemic discrimination that cannot be addressed through individual complaints, and represent broader community and collective interests in seeking redress for discrimination. If the AHRC cannot deliver these functions, some consumers suggested the creation of a specific independent body that can.

5. Conclusion

CoMHWA is pleased to see the recommendations from the Disability Royal Commission are being considered and that the review is exploring ways to align the Act with disability rights instruments. We hope for an Act that does not settle for offering protection from discrimination alone, but that strives to advance the rights of people with disability. Changing the law has a deep impact on social attitudes and understandings, and those attitudes currently evidence a widespread and entrenched stigma towards people with mental health challenges. An Act that moves away from deficit-based understandings and towards a human rights framework is better placed to encourage recognition of the diversity, strengths and capabilities of consumers and of all people with disability.

86 MacDermott, T. (2018). The collective dimension of federal anti-discrimination proceedings in Australia: Shifting the burden from individual litigants: Shifting the burden from individual litigants. International Journal of Discrimination and the Law, 18(1), 22-39. https://doi.org/10.1177/1358229118759712

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Consumers of

Mental Health WA ee ~—— Jy) | ABN: 95 581 286 940