First Peoples Disability Network: Submission to the Disability Discrimination Act Review 1992
Executive Summary
The First Peoples Disability Network (FPDN) welcomes the opportunity to contribute to the review of the Disability Discrimination Act 1992 (DDA). As the national peak organisation of and for Australia’s First Peoples with disability, FPDN represents the voices of the most marginalised members of our society who experience the intersection of racism and ableism.
Key Finding: First Nations people with disability face systemic, intersectional discrimination that the current DDA fails to adequately address. With 37% of First Nations people having disability, urgent reform is needed.
Summary of Recommendations:
- Embed Cultural Model of Inclusion Framework
- Strengthen Intersectional Protections
- Reform Disability Definition
- Implement Comprehensive Positive Duty
- Enhance Access to Justice Protections
- Strengthen Educational Protections
- Reform Burden of Proof and Evidence Requirements
- Align with Human Rights Frameworks
- Improve Exemptions Framework
- Establish Monitoring and Enforcement Mechanisms
Introduction and Background
About FPDN
The First Peoples Disability Network (FPDN) is the national peak organisation of and for Australia’s First Peoples with disability, their families and communities. FPDN is governed by First Peoples with lived experience of disability. We are a member of the Coalition of Peaks, partner to all Australian governments under the National Agreement on Closing the Gap, and the First Nations Disability Representative Organisation within Australia’s Disability Strategy governance structures.
Legislative and Policy Context
The DDA was enacted in 1992, well before Australia’s ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2008 and the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2009. The Act now operates within a complex landscape that includes:
- National Agreement on Closing the Gap (2020) with disability as a cross-cutting outcome
- Australia’s Disability Strategy 2021-2031 requiring tailored approaches for First Nations people
- Disability Sector Strengthening Plan building community-controlled disability sectors
- Disability Royal Commission Final Report (2023) with specific findings on First Nations experiences
Why This Issue Matters
First Nations people with disability are uniquely marginalised in Australia, experiencing what Commissioner Andrea Mason described as “a type of apartheid” during the Disability Royal Commission. The intersection of colonisation, systemic racism, and ableism creates barriers that the current DDA framework cannot adequately address.
Key Statistics:
- 25.3% of First Nations people have disability (183,700 people) compared to 18.4% of non-Indigenous Australians
- 59% of First Nations workers experienced discrimination/harassment in workplaces (2023), compared to 22% of non-Indigenous workers
- Only 7.4% of NDIS participants are First Nations people despite higher disability prevalence
- First Nations people with disability are overrepresented in the justice system and more often criminalised by police
- Severe disability: 11.6% of First Nations people have profound or severe limitations
- Multiple discrimination: 70.7% of First Nations people with disability aged 5+ have schooling or employment restrictions
Employment and Economic Security
- Workplace discrimination: 59% of First Nations workers experienced discrimination/harassment (2023), up from 50% in 2021
- Employment gaps: Only 35% of First Nations people with disability are employed compared to 56% without disability
- Income disparity: 46% of First Nations people with disability live in lowest income quintile compared to 33% without disability
Justice System Overrepresentation
- Prison population: Almost 1-in-3 prison entrants report disability, compared to 1-in-5 in general community
- First Nations criminalisation: Research shows First Nations people with cognitive disability are more likely to be investigated, charged and remanded than those without disability
- Violence under-reporting: 70% of women and 58% of men with disability who experienced violence did not report to police
Access to Services and Supports
- NDIS participation: Only 42,679 First Nations people participate in NDIS (7.4% of participants) despite higher disability prevalence
- Service access barriers: 53% of First Nations people with disability report problems accessing services compared to 33% without disability
- Cultural appropriateness: Lack of culturally safe disability services across almost every system
Educational Exclusion
- Disciplinary disparities: First Nations students with disability face higher rates of suspension and exclusion
- Reasonable adjustment failures: Schools not agreeing to adjustments requested by families and practitioners
- Educational outcomes: Poorer educational outcomes due to systemic barriers and discrimination
Key Messages
- Intersectional discrimination is systemic: First Nations people with disability face compounding forms of discrimination that the current DDA framework cannot adequately address through single-attribute complaints.
- Cultural safety is essential: The DDA must recognise that disability cannot be separated from cultural identity for First Nations people, requiring a Cultural Model of Inclusion approach.
- Self-determination is fundamental: Reforms must align with UNDRIP principles and the four Priority Reforms of Closing the Gap, ensuring First Nations people with disability have genuine participation in decisions affecting their lives.
- Prevention over reaction: A positive duty to eliminate discrimination is crucial for addressing systemic barriers before they cause harm to First Nations people with disability.
- Justice system reform is urgent: Enhanced protections in policing and court interactions are essential given the overrepresentation and criminalisation of First Nations people with disability.
Detailed Responses to Consultation Questions
| Question | FPDN Response | Key Rationale |
|---|---|---|
| PART 1: UPDATING UNDERSTANDINGS OF DISABILITY & DISCRIMINATION | ||
| 1. How should disability be defined in the Disability Discrimination Act? | FPDN supports adopting a human rights model definition that eliminates deficit-based language (malfunction, malformation, disfigurement, disturbed) and recognises disability as part of human diversity. The definition must acknowledge that many First Nations languages have no word for disability, reflecting different cultural concepts of difference that must be respected. | Current medical model contradicts First Nations cultural understanding of disability and perpetuates stigma |
| Question | FPDN Response | Key Rationale |
|---|---|---|
| 2. What factors should be considered in developing a new definition of disability? | Key factors must include: First Nations cultural models of inclusion and concepts of difference; recognition of intersectionality between disability and First Nations identity; community consultation following Priority Reform One principles; alignment with CRPD human rights model; elimination of stigmatising language; recognition that disability can result from colonisation and systemic barriers. | Definition must be culturally appropriate and developed with genuine First Nations participation |
| 3. Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes? | Absolutely. This is essential for First Nations people with disability who face intersectional discrimination combining racism and ableism. The current single-attribute approach fails to address the unique discrimination experienced at the intersection of identities, preventing effective legal remedy for the most marginalised. | First Nations people with disability experience unique intersectional discrimination that single complaints cannot address |
| 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? | Yes: specific provisions acknowledging First Nations people with disability as a distinct group; requirements for cultural safety in all duty holder obligations; recognition of cultural determinants of disability; provisions allowing representative complaints by community-controlled organisations; specific exemptions enabling positive measures; data collection requirements disaggregated by intersecting identities. | Comprehensive approach needed to address systemic intersectional discrimination and enable community-controlled solutions |
| 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? | FPDN supports the detriment test, removing the artificial comparator requirement. First Nations people with disability should not have to find a non-Indigenous person without disability in ‘similar circumstances’ - this ignores the reality of intersectional identity and cultural difference. Focus should be on unfavourable treatment because of disability status. | Comparator test creates artificial barriers and ignores intersectional experiences unique to First Nations people |
| Question | FPDN Response | Key Rationale |
|---|---|---|
| 6. How should the burden of proof be addressed in the Disability Discrimination Act? | Burden should shift to respondent once applicant establishes they were treated unfavourably and have disability. This is crucial for First Nations people who often lack access to internal decision-making information held by discriminators. Support Fair Work Act model with presumption of discrimination once prima facie case established. | Power imbalances mean First Nations people lack access to evidence held by discriminators |
| 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? | Remove complex reasonableness requirements that allow discriminators to justify harmful practices against cultural needs. Focus on whether requirement/condition disadvantages First Nations people with disability, not whether it seems ‘reasonable’ to mainstream perspectives. Include specific recognition of cultural requirements and practices as legitimate needs. | Current reasonableness test allows discrimination against First Nations cultural practices and needs |
| 8. Should the reasonableness element in the definition of indirect discrimination be: a. removed b. retained and supplemented with a list of factors to consider c. replaced by a legitimate and proportionate test d. other | FPDN supports option (c) - replace with legitimate and proportionate test. This better aligns with human rights principles and prevents dismissal of First Nations cultural needs as ‘unreasonable’. The test should explicitly consider impacts on intersectional identities and cultural safety requirements. | Legitimate and proportionate test better protects cultural rights and practices from discrimination |
| 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? | Yes, this complex language should be removed as it places unfair burden on First Nations people with disability to predict their future compliance with discriminatory requirements. Focus should be on the discriminatory impact of the requirement, not on complex assessments of compliance capacity. | Complex compliance language creates unnecessary barriers for already marginalised communities |
| 10. Should the Disabilities Convention be included in the objects provision of the Disability Discrimination Act? | Absolutely. CRPD inclusion is essential for human rights compliance and would strengthen protections for First Nations people with disability. Must be paired with UNDRIP recognition to acknowledge the intersection of disability and Indigenous rights, providing stronger foundation for cultural model of inclusion approaches. | Human rights compliance requires CRPD recognition; must be paired with UNDRIP for intersectional protection |
| Question | FPDN Response | Key Rationale |
|---|---|---|
| 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? | Yes, beneficial interpretation is essential and must explicitly include consideration of UNDRIP principles for First Nations people with disability. Interpretation should favour inclusion, cultural safety, and self-determination, helping address historical discrimination and support transformative equality rather than formal equality. | Beneficial interpretation essential for transformative equality and compliance with both CRPD and UNDRIP |
| PART 2: POSITIVE DUTY TO ELIMINATE DISCRIMINATION | ||
| 12. If there was a positive duty in the Disability Discrimination Act, who should it apply to? | Apply broadly to all duty holders including government agencies, employers, education providers, service providers, and healthcare organisations. Must include specific requirements for cultural safety when serving First Nations people with disability. Community-controlled organisations should be supported to meet positive duties through adequate funding and capacity building, not penalised. | Broad application necessary for systemic change; community-controlled organisations need support not punishment |
| 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? | Yes, but must go further for intersectional protection. Lessons include importance of clear guidance, reasonable measures framework, and enforcement mechanisms. For First Nations people with disability, must add requirements for cultural safety training, community consultation following Priority Reform One, disaggregated data collection, and partnership with community-controlled organisations. | Sex Discrimination Act approach needs enhancement for intersectional and cultural considerations |
| 14. What costs, benefits and other impacts would duty holders experience in meeting a positive duty under the Disability Discrimination Act? | Benefits far outweigh costs. Benefits include reduced discrimination complaints, better outcomes for First Nations people with disability, stronger community relationships, improved service quality and cultural competency. Costs include training and system changes, but these are investments in human rights compliance that provide long-term benefits and risk reduction. | Investment in prevention and human rights compliance provides long-term benefits and reduces legal risk |
| Question | FPDN Response | Key Rationale |
|---|---|---|
| 15. Should there be exceptions or limits to the application of a positive duty? | Limited exceptions only based on organisation size/capacity, with graduated requirements. No cultural or religious exceptions that would undermine rights of First Nations people with disability. Special measures exemption should be strengthened to allow positive discrimination in favour of First Nations people with disability through community-controlled services. | Exceptions must not undermine rights or prevent community-controlled service delivery for First Nations people |
| PART 3: INCLUSION IN EMPLOYMENT, EDUCATION & PUBLIC LIFE | ||
| 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? | Yes, a standalone duty would provide clearer obligations and stronger protection. Must include specific requirements for culturally appropriate adjustments for First Nations people with disability, recognising that cultural needs are legitimate adjustment requirements. Should include proactive duty to identify and implement adjustments before they are requested. | Current provisions fail First Nations people; standalone duty provides clearer obligations and cultural recognition |
| 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? | Extend to other contexts, particularly justice system interactions including police, courts and corrections where First Nations people with disability are overrepresented and face significant discrimination. Also extend to all government service delivery and healthcare settings where cultural adjustments are frequently required. | First Nations people with disability face discrimination in justice and healthcare systems not adequately covered |
| 18. Would removing the word ‘reasonable’ from the term ‘reasonable adjustments’ to align the language with the legal effect create any unintended consequences? | No unintended consequences. Removing ‘reasonable’ would eliminate confusion and align with CRPD language. The unjustifiable hardship test already provides appropriate limitation. For First Nations people with disability, this would prevent dismissal of cultural requirements as ‘unreasonable’ and strengthen obligation to provide genuine accommodation. | Removing ‘reasonable’ prevents cultural discrimination and aligns with international human rights standards |
| Question | FPDN Response | Key Rationale |
|---|---|---|
| 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 | FPDN supports option (a) - the Disability Royal Commission amendment requiring consultation with the person with disability and documentation of decision-making. For First Nations people with disability, this must include culturally appropriate consultation following Priority Reform One principles and consideration of community-controlled alternatives. | DRC amendments ensure genuine consultation; must be culturally appropriate for First Nations people |
| 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? | Strong support, with requirement that consultation for First Nations people with disability be culturally appropriate and may include family/community members as chosen by the individual. Employers should be required to consider community-controlled support options and cultural mentorship programs as legitimate adjustments rather than only mainstream alternatives. | Consultation must be culturally safe and recognise community-controlled support as legitimate adjustment |
| 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? | Yes: require job descriptions to clearly separate essential functions from cultural assumptions; mandate cultural competency training for managers; require consideration of culturally appropriate supervision and support models; prohibit discrimination based on communication styles or cultural practices unrelated to job performance; enable community-controlled employment support services. | Many ‘inherent requirements’ reflect cultural bias rather than genuine job necessities |
| 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? | Yes: factors must include availability of cultural supports, reasonable adjustment possibilities, cultural competency of workplace, and whether requirements reflect genuine job needs or cultural assumptions. Cannot discriminate based on communication styles, cultural practices, or need for cultural support unless directly impacting core job functions. | Current definition allows cultural discrimination disguised as inherent job requirements |
| Question | FPDN Response | Key Rationale |
|---|---|---|
| 23. Should the concepts of exclusion and exclusionary discipline be defined in the Disability Discrimination Act? | Yes, definitions are essential given disproportionate exclusion of First Nations students with disability. Must recognise that exclusion includes informal removal, reduced hours, segregation, and suspension. Definition should acknowledge that exclusionary practices often reflect cultural misunderstanding rather than genuine behaviour concerns. | First Nations students with disability face disproportionate exclusion often based on cultural misunderstanding |
| 24. Should there be exceptions or limits on when exclusion is unlawful? | Very limited exceptions only for genuine safety risks that cannot be managed through reasonable adjustments. No exceptions based on ‘disruption’ to others or resource constraints. For First Nations students with disability, must consider whether behaviour reflects trauma, cultural differences, or unmet needs rather than allowing exclusion as first response. | Exclusion exceptions must not perpetuate discrimination against traumatised or culturally different students |
| 25. Should any of the state and territory provisions relating to exclusionary discipline be adopted in the Disability Discrimination Act? | Yes, adopt strongest protections from jurisdictions like Victoria that require functional behaviour assessments and positive behaviour support plans before exclusion. Must include requirements for cultural competency assessment and involvement of community-controlled organisations in planning for First Nations students with disability. | Strongest jurisdictional protections needed; must include cultural competency requirements |
| 26. Would a different approach to exclusionary discipline be more appropriate in the higher education and vocational education and training sectors? | Same strong protections needed across all education sectors. Higher education must address systemic barriers that exclude First Nations people with disability from accessing courses. VET sector must eliminate discriminatory pre-requisites and ensure cultural appropriateness of programs, particularly in areas relevant to community-controlled services. | Equal protection needed across all education sectors; systemic barriers must be addressed |
| PART 4: IMPROVING ACCESS TO JUSTICE |
| Question | FPDN Response | Key Rationale |
|---|---|---|
| 27. How could the Disability Discrimination Act be amended to protect people with disability from offensive behaviour and/or harassment? | Include offensive behaviour and harassment provisions modelled on Racial Discrimination Act s18C, recognising that First Nations people with disability face particularly severe harassment combining racism and ableism. Must cover systemic harassment in service delivery, employment, and community settings, with specific protections for vulnerable settings like residential care. | First Nations people with disability face unique intersectional harassment requiring specific protection |
| 28. If the Disability Discrimination Act were to prohibit offensive behaviour and/or harassment, how should these terms be defined? | Define broadly to capture intersectional harassment targeting both disability and First Nations identity. Include behaviour that offends, insults, humiliates or intimidates, with objective test considering perspective of affected community. Must recognise that cultural insults compound disability-based harassment for First Nations people. | Definitions must capture intersectional nature of harassment faced by First Nations people with disability |
| 29. Should there be exemptions for any behaviour, similar to the Racial Discrimination Act? | Support s18D-style exemptions for artistic expression, academic discussion, and fair reporting. However, exemptions must not override cultural protocols or enable harassment in service delivery settings. Any exemption must consider intersectional impact on First Nations people with disability who face compounded marginalisation. | Exemptions must not enable service delivery discrimination or override cultural protocols |
| 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? | Yes: extend hate crime provisions to disability-based violence; include intersectional vilification protections; strengthen protections in online settings where First Nations people with disability face particular harassment; enable representative complaints by community organisations; include restorative justice options appropriate for community-controlled dispute resolution. | Current frameworks inadequate for intersectional vilification and online harassment |
| Question | FPDN Response | Key Rationale |
|---|---|---|
| 31. How could the Disability Discrimination Act be amended to ensure that it covers policing? | Explicitly include all police interactions under services provisions, removing any ambiguity. Given overrepresentation of First Nations people with disability in justice system, must include specific protections for police interactions, mandatory disability awareness training, and requirements for appropriate communication and de-escalation techniques. | First Nations people with disability are overrepresented in justice system and face significant police discrimination |
| 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? | No exclusions should apply. All police interactions must be covered given documented discrimination against First Nations people with disability. Justice system encounters require strongest protections, not exclusions. Any operational considerations can be managed through appropriate adjustments and training, not legislative exclusions. | No exclusions justified given documented police discrimination against First Nations people with disability |
| PART 5: EXEMPTIONS | ||
| 33. Could any of the permanent exemptions be narrowed or updated, while balancing other policy considerations? | Yes: narrow immigration exemptions that discriminate against First Nations people with disability; update insurance exemptions to prevent blanket discrimination; review combat duties exemptions for unnecessary breadth; ensure no exemptions prevent special measures for First Nations people with disability through community-controlled services. | Current exemptions too broad and may prevent community-controlled solutions for First Nations people |
| 34. Should the Australian Human Rights Commission be given the power to grant special measures certificates? | Yes, with specific guidance recognising First Nations self-determination and community control. AHRC should have clear criteria supporting community-controlled organisations to deliver culturally appropriate services to First Nations people with disability. Process must involve genuine consultation with affected communities. | Special measures certificates essential for community-controlled service delivery |
| 35. Should a definition for special measures be added to the Disability Discrimination Act? | Yes, definition must align with CRPD Article 5 and UNDRIP principles, explicitly recognising community-controlled services for First Nations people with disability as legitimate special measures. Must clarify that cultural appropriateness and community control are valid criteria for special measures programs. | Definition needed to protect community-controlled services from discrimination challenges |
| Question | FPDN Response | Key Rationale |
|---|---|---|
| 36. Should a definition for temporary exemptions be added to the Disability Discrimination Act? | Yes, with strict criteria and time limits. Any temporary exemptions must not prevent First Nations people with disability from accessing services or undermine community-controlled service development. Regular review required to ensure exemptions are genuinely temporary and not perpetuating discrimination. | Clear definition prevents abuse of exemption process to avoid obligations to First Nations people |
| 37. Would you recommend any changes to the legislative process of granting temporary exemptions? | Require mandatory consultation with affected communities, particularly First Nations organisations, before granting exemptions. Include sunset clauses, public reporting requirements, and regular review processes. Exemptions should not be granted where community-controlled alternatives exist or could be developed with appropriate support. | Consultation and transparency needed to prevent exemptions undermining First Nations rights |
| PART 6: MODERNISING THE DDA | ||
| 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? | Clarify that assistance animals include those trained by community members according to First Nations cultural protocols. Evidence requirements must not discriminate against community-based training programs. Standards must be culturally appropriate and not impose mainstream assumptions about animal behaviour that conflict with cultural practices. | Current requirements may discriminate against culturally appropriate assistance animal training |
| 39. Would legislative amendments or guidance materials be helpful to balance flexibility and certainty, or a mixture of both? | Mixture of both: legislative amendments for core rights and principles, guidance materials for implementation detail. Guidance must be developed in genuine partnership with First Nations disability organisations and regularly updated based on community feedback and emerging cultural considerations. | Combination approach allows flexibility while ensuring cultural considerations are addressed |
| 40. Should specific training organisations be prescribed under the Disability Discrimination Regulations? | Yes, but must include community-controlled organisations and culturally appropriate training providers. Cannot limit prescription to mainstream organisations that may not understand cultural needs of First Nations people with disability. Include Indigenous training providers and community-controlled organisations. | Prescription must include culturally appropriate training providers for First Nations people |
| Question | FPDN Response | Key Rationale |
|---|---|---|
| 41. Should there be minimum requirements for action plans (such as through guidelines) and what should the minimum requirements cover? | Yes: minimum requirements must include disaggregated data collection by cultural background and disability, consultation requirements following Priority Reform One, cultural competency training, partnerships with community-controlled organisations, and specific strategies for First Nations people with disability. Include outcome measurement and community accountability mechanisms. | Action plans must address specific needs of First Nations people with disability to be effective |
| 42. Should the Australian Human Rights Commission be able to reject action plans that fail to meet these requirements? | Yes, AHRC should have power to reject inadequate plans and require revision. Particular focus on rejecting plans that fail to address First Nations people with disability or lack genuine community consultation. Should provide guidance and support for improvement rather than only rejection. | Enforcement power needed to ensure action plans address First Nations people with disability |
| 43. Should there be a set period of time for which an action plan is valid? | Yes, maximum three-year validity with annual progress reporting. For First Nations people with disability, must include mid-term community consultation to assess effectiveness and make necessary adjustments. Renewal should require evidence of genuine progress on outcomes for First Nations people. | Time limits ensure accountability and allow for community feedback on effectiveness |
| 44. Are there any other changes to the action plan process that you would recommend? | Require public reporting on outcomes for First Nations people with disability; mandate genuine community consultation following Priority Reform One; include community-controlled organisations in plan development; establish independent monitoring by First Nations disability organisations; enable community complaints about inadequate plans. | Community involvement and accountability essential for effective action plans |
| 45. How could compliance with and enforcement of the Disability Standards be improved? | Strengthen AHRC enforcement powers; establish community-controlled monitoring mechanisms; require regular compliance auditing with public reporting; include specific compliance measures for First Nations people with disability; enable representative complaints by community organisations; provide technical assistance for compliance improvement. | Current enforcement inadequate; community-controlled monitoring needed for cultural appropriateness |
| Question | FPDN Response | Key Rationale |
|---|---|---|
| 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? | Yes, with mandatory reporting on outcomes for First Nations people with disability using disaggregated data. Self-reporting must include community feedback mechanisms and be subject to community-controlled verification. Reporting should trigger improvement planning where gaps identified. | Self-reporting valuable if includes First Nations-specific data and community verification |
| 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? | Yes, guidance must be developed in partnership with First Nations disability organisations and include specific requirements for reporting on outcomes for First Nations people with disability. Guidance should include cultural competency indicators and community consultation requirements. | Guidance must be culturally appropriate and developed with First Nations disability expertise |
| PART 7: 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? | Yes: Queensland’s positive duty provisions; Victorian public sector equality duties; NSW Disability Inclusion Act planning requirements; Fair Work Act burden of proof provisions; ACT Human Rights Act interpretive requirements. Must ensure borrowed provisions include intersectional and cultural considerations for First Nations people with disability. | Strong jurisdictional models exist but need cultural enhancement for First Nations people |
| 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? | Develop comprehensive cultural competency guidance for serving First Nations people with disability; create community-controlled resources explaining rights; establish First Nations disability legal education programs; provide sector-specific guidance for health, education, employment; include case studies of good practice in cultural inclusion. | Culturally specific guidance essential for effective implementation and community understanding |
| 50. How can we ensure the Disability Discrimination Act remains fit-for-purpose into the future? | Establish regular review cycles with mandatory First Nations community consultation; create ongoing monitoring of outcomes for First Nations people with disability; build adaptive capacity through community-controlled feedback mechanisms; ensure alignment with evolving international human rights standards; maintain connection to Closing the Gap framework. | Future fitness requires ongoing community control and alignment with evolving rights frameworks |
| Question | FPDN Response | Key Rationale |
|---|---|---|
| 51. Are there any other issues with the Disability Discrimination Act that should be considered as part of this review? | Yes: establish dedicated First Nations disability commissioner role; create community-controlled dispute resolution processes; strengthen connections to National Agreement on Closing the Gap; improve coordination with NDIS and disability support systems; address digital accessibility and online discrimination; enhance protections for First Nations children with disability in out-of-home care. | Comprehensive reform requires institutional changes and system coordination for First Nations people |
Recommendations in Detail
1. Embed Cultural Model of Inclusion Framework
- Recommendation: Amend the DDA to recognise and implement a Cultural Model of Inclusion that centres First Nations cultural determinants of strength and wellbeing.
- Rationale: Unlike the social model which focuses on removing barriers, a Cultural Model of Inclusion recognises the diversity of First Nations cultures, languages, knowledge systems and beliefs. It seeks to improve outcomes by focusing on what keeps First Nations people strong, rather than merely addressing deficits.
2. Strengthen Intersectional Protections
- Recommendation: Explicitly recognise intersectional discrimination and allow complaints based on multiple or combined protected attributes, with specific provisions for First Nations people with disability.
- Rationale: The intersection of racism and ableism creates unique forms of discrimination that cannot be adequately addressed through single-attribute complaints. The current framework fails to protect those experiencing the most severe discrimination.
3. Reform Disability Definition
- Recommendation: Adopt a human rights model definition that eliminates deficit-based language and recognises disability as part of human diversity, with specific acknowledgment of First Nations concepts of difference.
- Rationale: Current medical model language contradicts First Nations cultural understanding of disability and perpetuates stigma. Many First Nations languages have no word for disability, reflecting different cultural concepts that must be respected.
4. Implement Comprehensive Positive Duty
- Recommendation: Introduce a positive duty requiring all duty holders to proactively eliminate discrimination, with specific requirements for:
- Culturally safe consultation with First Nations people with disability
- Cultural competency training for staff
- Accessible and culturally appropriate service delivery
- Regular monitoring and reporting on outcomes for First Nations people with disability
- Rationale: Prevention is better than cure. The current reactive model places the burden on already marginalised individuals to seek redress after discrimination occurs.
5. Enhance Access to Justice Protections
- Recommendation:
- Include explicit coverage of all police interactions under services provisions
- Introduce offensive behaviour and vilification protections modelled on Racial Discrimination Act
- Establish culturally appropriate complaint mechanisms
- Provide specific protections for First Nations people with disability in the justice system
- Rationale: First Nations people with disability are overrepresented in the justice system and face significant discrimination from police. Current protections are inadequate.
6. Strengthen Educational Protections
- Recommendation:
- Define exclusionary discipline and limit its use
- Require schools to demonstrate genuine consultation before claiming unjustifiable hardship
- Mandate cultural safety training for educational staff
- Strengthen enforcement mechanisms for Education Standards
- Rationale: First Nations students with disability face disproportionate exclusion from education, perpetuating cycles of disadvantage.
7. Reform Burden of Proof and Evidence Requirements
- Recommendation: Shift burden of proof to respondents and require duty holders to document decision-making processes, particularly when claiming unjustifiable hardship.
- Rationale: First Nations people with disability often lack access to information needed to prove discrimination. Power imbalances must be addressed through procedural reforms.
8. Align with Human Rights Frameworks
- Recommendation:
- Include CRPD in objects provision
- Require beneficial interpretation aligned with human rights principles
- Ensure consistency with UNDRIP and National Agreement on Closing the Gap
- Establish formal linkages with Australia’s Disability Strategy
- Rationale: Australia has international obligations that must be reflected in domestic law. Coherent policy framework essential for effectiveness.
9. Improve Exemptions Framework
- Recommendation:
- Narrow exemptions to minimum necessary
- Require regular review of permanent exemptions
- Strengthen special measures provisions for First Nations people with disability
- Ensure exemptions cannot undermine self-determination
- Rationale: Current exemptions may prevent necessary special measures for First Nations people with disability and undermine community-controlled service delivery.
10. Establish Monitoring and Enforcement Mechanisms
- Recommendation:
- Regular monitoring of outcomes for First Nations people with disability
- Specific reporting requirements under Australia’s Disability Strategy
- Enhanced enforcement powers for Australian Human Rights Commission
- Community-controlled evaluation processes
- Rationale: Without accountability mechanisms, legislative reform will not translate to improved outcomes for First Nations people with disability.
Conclusion
The review of the Disability Discrimination Act presents a critical opportunity to address the systemic discrimination faced by First Nations people with disability. For too long, our people have experienced the intersection of racism and ableism without adequate legal protection or recourse. FPDN calls for transformative reform that moves beyond piecemeal amendments to embrace a comprehensive human rights approach centered on First Nations self-determination. The recommendations in this submission reflect the voices of First Nations people with disability across the country who deserve dignity, respect, and genuine equality.
The Commonwealth Government committed under the National Agreement on Closing the Gap to work in genuine partnership with First Nations people. This review must honour that commitment by ensuring First Nations people with disability have full and equal participation in Australian society. We stand ready to work in partnership with government, peak disability organisations, and the broader community to implement these reforms. The time for action is now.
FPDN would be pleased to discuss any aspect of this submission and provide further evidence or clarification as required.
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Information on this Statement
Date issued: 14/11/25
Policy contact: redacted