Email: office@afdo.org.au
Website: www.afdo.org.au\ Phone: 1800 219 969
A.B.N. 25 105 510 898
Contact: Matthew Hall
matthew.hall@afdo.org.au

Review of the Disability Discrimination Act 1992

Submission to the Attorney-General’s Department

14 November 2025

AFDO author & contact: Matthew Hall National Manager - Systemic Advocacy & Policy matthew.hall@afdo.org.au

Reviewed & approved: Ross Joyce Chief Executive Officer

Contents

• Acknowledgements

• Language used in this document

• About AFDO

• 1. Acronyms and abbreviations

• 2. Executive summary

• 2.1 Key recommendations

• 2.2 Overall goal

• 3. Response to Parts 2, 3, 4, 5, 6, & 7 of the Consultation Paper

• 4. Definition of “disability”

• 4.1 Introduction

• 4.2 Avoiding circularity

• 4.3 Including “health status” and “irrelevant medical record”

• 5. Intersectionality

• 6. Amending the tests for discrimination

• 6.1 “Direct” or “indirect”

• 6.2 Definition of “direct discrimination”

• Indirect discrimination – “reasonableness

• 7. Interpreting the DDA in line with the CRPD

• 8. Positive duty to eliminate discrimination

• Endnotes

Page 2 of 16

Australian Federation of Disability Organisations (AFDO) Ltd is registered as a charity with the Australian Charities and Not for profit Commission. It is also a Public Benevolent Institution, endorsed by the Australian Taxation Office as a Deductible Gift Recipient. A donation of $2.00 or more is tax deductible.

Consent to publication

Australian Federation of Disability Organisations (AFDO) consents to the publication of this submission, including the names and contact details of AFDO staff. The relevant AFDO staff also give that consent.

© 2025, Australian Federation of Disability Organisations (AFDO) Ltd
A.B.N. 25 105 510 898

• CC BY-NC-SA (version 4.0): AFDO publishes, distributes, and otherwise makes available its advocacy and policy materials, including this submission, under a Creative Commons licence.
• This licence allows any person to distribute, remix, adapt, and build upon the material in any medium or format for non-commercial purposes only, and only if AFDO is credited as the creator of the material. If you remix, adapt, or build upon the material, you must also license your modified material under identical terms.

The CC BY-NC-SA (version 4.0) licence includes the following elements:

• BY You must give appropriate credit, provide a link to the licence, and indicate if any changes have been made. You may do so in any reasonable manner, but not in any way that suggests AFDO endorses you or your use.
• NC You must not use the material for commercial purposes.
• SA If you remix, transform, or build upon the material, you must distribute your contributions under this licence.

No additional restrictions — You must not apply legal terms or technological measures that legally restrict others from doing anything permitted under this licence.

Page 3 of 16

Acknowledgements

Australian Federation of Disability Organisations (AFDO) acknowledges Aboriginal and Torres Strait Islander people as the First Peoples and traditional custodians of the land now called Australia. We recognise their deep and continuing connection to Country and community. We pay our respects to the traditional custodians of Country where we work, connect, or meet, which always was, and always will be, Aboriginal land. We also pay our respects to Elders past, present, and emerging.

AFDO acknowledges people with disability, particularly those individuals that have experienced or are continuing to experience violence, abuse, neglect, or exploitation. We also acknowledge their families, supporters, and representative organisations and express our thanks for the continuing work we all do in their support.

Language used in this document

AFDO uses person-first language, like “people with disability,” not identity-first language. This is a deliberate choice made by AFDO. This aligns with the UN Convention on the Rights of Persons with Disabilities. It also matches the language used by all levels of government in Australia. Most other peak bodies in the Australian disability sector also use person-first language.

AFDO chooses to use this language because it puts the person before the disability. It values the individual by seeing them as a person, not a condition.

Consistent with this position, AFDO uses person-first language in this document.

We know many people with disability prefer identity-first language, particularly Autistic people. Disability is a part of their identity. This language shows a connection to the disability community and pride in their disability. It also says society is what disables them.

Views on language use reflect people’s identities, experiences of disability, and community attitudes. It is a matter of individual choice and agency. AFDO respects everyone’s right to choose how to describe their identity and experiences.

“People with disability” means anyone who is d/Deaf (including people who identify as culturally Deaf), or who has a learning disability, or a sensory, physical, neurodevelopmental, intellectual, or cognitive disability, or mental health condition.

Page 4 of 16

About AFDO

Since 2003, the Australian Federation of Disability Organisations (AFDO) has been the peak body in the disability sector. AFDO is a national, cross-disability peak body and a Disability Representative Organisation (DRO), funded by the Commonwealth government to represent and advocate for people with disability and support them to fully take part in Australian life - socially, culturally, politically, and economically. Through our membership (many of whom are national, disability-specific, peak bodies) AFDO is in a position of a national peak of peaks in the disability sector, having a total reach of over four million Australians.

AFDO is also a Disabled Peoples Organisation (DPO), governed, led and constituted by people with disability. We are within a disability rights movement that places people with disability at the centre of decision-making in all aspects of our lives.

AFDO is a strong, trusted voice for the disability sector. We advocate on national policy, inquiries, and initiatives with governments at all levels in Australia. We work to build a community where people with disability can take part in all aspects of social, economic, political, and cultural life. This means:

• real participation in community life
• building respectful, valued relationships
• social and economic participation, and
• contributing as valued citizens.

Our vision

All people with disability can take part equally in all aspects of social, economic, political, and cultural life.

Our mission

Using the strength of our member organisations to harness the collective power of uniting people with disability to change society into a community where everyone is equal.

Our strategic objectives

• To represent the interests and united voice of our members and people with disability at a national and international level in all relevant forums.
• To build the capacity, profile, reputation, and sustainability of AFDO through the

Page 5 of 16

strength of our member organisations.

• To enhance the connection and influence in international disability initiatives by policy, advocacy, and engagement, focused on the Asia Pacific region.

Our members

AFDO’s member organisations contribute to the national policy agenda and address issues that impact the lives of people with disability in Australia. We understand that disability specific organisations play a key role in the provision of information and peer support to people with disability and their families. This role keeps them closely connected to their grassroots communities. Each community has its peak organisation that uses its voice to advocate on issues.

More information about AFDO’s members can be found on AFDO’s website.

Page 6 of 16

1. Acronyms and abbreviations

This list of terms may assist users of this document to understand what we mean when we use the following terms or abbreviations.

Page 7 of 16

2. Executive summary

The DDA is based on a concept of disability that is rooted in the medical model, and that is no longer appropriate for Australian society. AFDO urges the government to use this review as the opportunity to align the Act with the social model of disability and Australia’s obligations under the CRPD.

AFDO endorses the recommendations made by the Justice and Equity Centre (JEC) in its written submission dated 7 November 2025.

2.1 Key recommendations

1. Remove deficit-based language from the definition of “disability”.
2. Include “health status” and “irrelevant medical record” as protected attributes.
3. Avoid circular definitions and ensure clarity between “impairment” and “barriers”.
4. Recognise intersectionality, acknowledge compounded discrimination, and permit claims based on multiple intersecting protected attributes (e.g., disability, race, gender).
5. Replace the comparator test for direct discrimination with an “unfavourable treatment” or “detriment” test.
6. Remove the “reasonableness” element from indirect discrimination.
7. Introduce a positive duty to eliminate discrimination similar to section 149 of the UK Equality Act, requiring organisations to prevent discrimination.
8. Include a clear statement that the DDA must be interpreted consistently with CRPD principles, affirming dignity, autonomy, and participation.
9. Adopt all the other recommendations in the JEC submission.

2.2 Overall goal

To create a rights-based, inclusive legislative framework that removes barriers, respects diverse identities, and ensures full participation of people with disability in Australian society.

Page 8 of 16

3. Response to Parts 2, 3, 4, 5, 6, & 7 of the Consultation Paper

In response to each of the issues identified and questions posed in:

(a) Part 2, Positive duty to eliminate discrimination (subject to one additional matter outlined in section 8 below)

(b) Part 3, Encouraging inclusion in employment, education and other areas of public life

(c) Part 4, Improving access to justice

(d) Part 5, Exemptions

(e) Part 6, Modernising the DDA, and

(f) Part 7, Further options for reform,

Of the Consultation Paper, AFDO endorses, and repeats and relies on, the analysis, submissions, and recommendations made by JEC in respect of each of those matters in its written submission dated 7 November 2025.

4. Definition of “disability”

4.1 Introduction

The DDA currently follows a medical model of disability. This model uses deficit-based language that is outdated, including deficit-based language in the definition of “disability”. The definition must be changed so that it reflects contemporary views of disability, human rights principles, and Australia’s commitments under the CRPD.

The CRPD

reflects the fundamental shift from a medical model of disability (defining people by their impairments) to a social model and human rights model (treating people with disability as rights holders).3

The CRPD is recognised as providing the most thorough and up-to-date human rights protections for people with disability.4 Australian laws and policies need to align with, and reflect, the language of the CRPD and the social model of disability.

The current definition is broad. This is one of its strengths. This must be retained in any new definition.

Page 9 of 16

AFDO recommends that the definition of “disability” is broad and inclusive. It must describe the full range of people who may face discriminatory barriers due to their disability, and must not create any additional barriers. Further, the definition must be closely aligned to the DDA’s objective to eliminate discrimination (compared to definitions of disability in other laws or contexts, which may have different objectives5).

We acknowledge that “impairment” is a term that is used in the CRPD6, to define a “person with disabilities”. We also acknowledge that the term is also used to define “disability” in disability rights legislation in other Australian jurisdictions7. However, the definition must not use the word “impairment”. The term is antithetical to a strengths-based approach and is a legacy of the medical model of disability, focusing on:

• diagnosis and deficit
• the participant’s condition, and
• what the participant is unable to do.

4.2 Avoiding circularity

However, care must be taken to ensure the definition does not become circular. It is essential that there is a clear understanding of the differences between “impairments” and “barriers” and in the ways in which those terms are used in the social model of disability and the CRPD.

“Barrier” is not a synonym for “impairment”. Any new definition cannot replace references to medicalised terms of loss of function or “impairment” with “barriers”. In the social model of disability, “impairment” refers to an individual’s physical, sensory, intellectual, or psychological differences. “Disability” arises from the barriers society creates that prevent full participation, not from the “impairment” itself.

Defining disability solely through social “barriers”, therefore, risks circular reasoning, since discrimination law targets actions that create those barriers. Insights from US law8 suggest that requiring a substantial limitation due to impairment may exclude those who benefit from measures that help lessen the effects, making careful drafting essential.

4.3 Including “health status” and “irrelevant medical record”

AFDO supports including ‘health status’ and ’medical record’ as attributes in the definition of “disability”.

Page 10 of 16

AFDO does not support including “medical condition” in the definition. Medicalisation of societal or other disabling barriers is inconsistent with the social model of disability.

Including “health status” as a “disability” will protect those who face discrimination on the grounds of their health status, and who may not identify as a person with disability, like a person who is living with HIV.

The inclusion of ’irrelevant medical record’ in the definition needs to be informed by the provisions in the Northern Territory9, Queensland10, and Tasmania11, by their operation in practice and their interpretation by the Courts.

5. Intersectionality

Where multiple social identities, including race, ethnicity, gender, sexual orientation, and disability, intersect, the interaction creates different and compounded experiences of discrimination. Intersectionality highlights that overlapping systems of power and oppression produce distinct barriers. These barriers, and their effects, cannot be understood by looking at only one identity, or by looking at each identity separately.

The DDA does not allow the intersectionality of multiple attributes protected under other anti-discrimination legislation to be considered in a claim of disability discrimination. Where an applicant has;

an intersectionality of protected attributes relevant to race, age, sex, and imputed disability discrimination …I do not find that [intersectionality] is of no assistance in understanding how the applicant frames discrimination claims, though ultimately I am bound to proceed in accordance with the provisions of each statute…12

The DDA must expressly permit claims based on multiple or combined protected attributes, ensuring discrimination at the intersection of disability and other grounds under other anti-discrimination legislation (gender, race, age) can be considered and remedied.

It is very important, however, that “intersectionality” is not included in the DDA as an additive approach. Multiple social identities are not separate and distinct. The effects of discrimination on the grounds of one identity cannot be simply summed together with other grounds. Attributes of race, gender, or disability are not independent variables whose effects on discrimination add up. It is essential to recognise how they combine to create unique,

Page 11 of 16

compounded, and inseparable forms of oppression, which cannot be understood fully in isolation.

It is also important that “intersectionality” is not conflated with “multiple disabilities.” Intersectionality addresses how different systems of power combine to produce compounded discrimination Multiple disabilities raise distinct accessibility and adjustment questions.

Federal discrimination laws must be harmonised to allow claims based on multiple grounds within a single “no wrong door” process. AFDO also recommends that these changes are supported by guidance resources that are co-designed by people with disability, including women, gender-diverse, queer, First Nations, and other marginalised groups, Any guidance must show how the compounded effects of intersectionality operate in practice and avoid simplistic additive approaches.

6. Amending the tests for discrimination

6.1 “Direct” or “indirect”

The current binary distinction in the DDA between “direct” and “indirect” discrimination is inflexible, confusing, and unnecessarily technical and ambiguous13. The distinction does not reflect the realities of human behaviours14. It is not always easy or clear-cut to identify conduct as either “direct” or “indirect”. There may be overlap, or a combination of both. The DDA needs to allow for complex fact situations and provide flexibility in how an applicant frames their complaint, and how the AHRC or a Court determines a complaint of disability discrimination

AFDO supports the approach taken in the Australian Capital Territory, where;

discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.15

6.2 Definition of “direct discrimination”

AFDO strongly supports a change to the definition of “direct discrimination”. The DDA will be significantly improved if the comparator model of direct discrimination is replaced by consideration of whether the complainant (a person with disability) has experienced ‘unfavourable treatment’ or suffered a ‘detriment’. This change focuses on what happened to

Page 12 of 16

the person and the consequences of the conduct, rather than relying on hypothetical comparisons.

This is a simpler and fairer basis for determining whether direct discrimination has occurred. This approach aligns with the social and human rights models of disability. It has been adopted in Victoria^16 and the ACT^17.

In addition, if a complainant establishes that they:

(a) are a person with disability (as defined in the DDA), and

(b) have been treated unfavourably or have suffered a detriment,

direct discrimination will be established unless the respondent establishes that, on the balance of probabilities, the treatment was for a reason other than the person’s disability. The respondent must have the onus of proving that the treatment was not “because” of the disability.

This change addresses the imbalances in information and knowledge of a state of mind between the parties. Often, with information or evidence about why a person may been treated poorly is not within their knowledge. Without independent, external, corroborating evidence, proving the state of mind of another person at a point in time in the past is likely impossible.

We note this approach is consistent with the DDA’s current approach to establish indirect discrimination.^18

Indirect discrimination – “reasonableness”

The element of the reasonableness of a requirement or condition as part of the test for indirect discrimination needs to be removed from the DDA..

Allowing discrimination which is ‘reasonable, having regard to the circumstances’^19 provides an overly broad justification for unfavourable treatment of another person, maintains the current situation and allows prejudice to continue. Further, the DRC identified^20 that, with the overlap that this requirement has with the concept of ‘unjustifiable hardship’^21, a respondent gets “two bites at the cherry” to excuse or legitimise harmful or unfavorable behaviour.^22

AFDO supports the recommendation of the DRC^23. Whether the discriminatory impact of any requirement or condition is justified must be determined solely on the extent to which the condition or requirement imposes an unjustifiable hardship.

7. Interpreting the DDA in line with the CRPD

We note that the DDA commenced operation before Australia ratified the CRPD, and before the CRPD came into force.

AFDO supports amending the DDA to state explicitly that the DDA gives effect to Australia’s obligations under the CRPD and in international law generally, affirming dignity, autonomy, participation, and the removal of attitudinal, environmental and procedural barriers. We also support the inclusion in the DDA of a clear statement directing courts, regulators and public authorities to interpret the DDA consistently with Australia’s international obligations, and with the CRPD, in particular.

8. Positive duty to eliminate discrimination

In addition to the matters raised and referenced in JEC’s submission, AFDO supports the following recommendations:

10. notes that a positive duty has been recommended by:

    10.1 the Queensland Human Rights Commission, in its 2023 Building Belonging Review^24, and 10.2 the AHRC, in the context of the Sex Discrimination Act 1984, in the Respect@Work Inquiry^25

11. urges the government to include in the DDA a provision that is:

    11.1 aligned with Recommendation 4.12 of the DRC^26, and 11.2 closely modelled on section 149 of the United Kingdom’s Equality Act 2010^27, with the necessary modifications to limit the definition of “relevant protected characteristic” in subsection (7) to disability, or to replace “relevant protected characteristic” with a reference to “disability”.

Endnotes

1 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Commonwealth of Australia, retrieved from https://consultations.ag.gov.au/rights-and- protections/dda-issues-paper/user_uploads/dda-review-issues-paper.pdf, last accessed 11 November 2025. 2 United Nations Convention on the Rights of Persons with Disabilities, 2515 UNTS 3 (entered into force 3 May 2008), retrieved from https://social.desa.un.org/issues/disability/crpd/convention-on-the-rights-of- persons-with-disabilities-crpd, last accessed 16 October 2025. 3 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Realising the human rights of people with disability, (Final Report, September 2023), vol 4, 44, retrieved from retrieved from https://disability.royalcommission.gov.au/publications/final-report-volume-4- realising-human-rights-people-disability, last accessed 31 October 2025. 4 Rosemary Kayess and Therese Sands, ‘Convention on the Rights of Persons with Disabilities: Shining a light on Social Transformation’ (Research Report, September 2020) 2. 5 For example, the definition used by the Australian Bureau of Statistics for the purposes of population data. See https://www.abs.gov.au/statistics/health/disability/disability- ageing-and-carers-australia-summary-findings/2018, last accessed 7 november 2025. 6 See paragraph (e) of the Preamble to the CRPD and article 1, note 2. 7 For example, see section 7(1) (definition of “disability), Disability Inclusion Act 2014 (NSW) 8 Nicole Buonocore Porter, ‘Explaining ‘Not Disabled’ Cases Ten Years After the ADAA: A Story of Ignorance, Incompetence, and Possibly Animus’ (2019) 26(3) Georgetown Journal on Poverty Law and Policy 383, 386-387. 9 Section 19(1)(p), Anti-Discrimination Act 1992 (NT) 10 Anti-Discrimination Act 1991 (Qld), as amended by the Respect at Work and Other Matters Amendment Act 2024. 11 Section 16(q), Anti-Discrimination Act 1998 (Tas). 12 Pathmanathan v St John of God Healthcare Inc (No 3) [2023] FCA 628 at [29]-[30]. 13 Campbell, C. and Smith, D. (2023), Distinguishing Between Direct and Indirect Discrimination. Mod Law Rev., 86: 307-330. https://doi.org/10.1111/1468-2230.12760, accessed 7 November 2025.

14 Thomas Pettikgrew, Research Starter, Direct vs. indirect discrimination. EBSCO, 2024, retrieved from https://www.ebsco.com/research-starters/sociology/direct-vs- indirect-discrimination#bibliography, last accessed 7 November 2025. 15 Discrimination Act 1991 (ACT), s 8(1). 16 Equal Opportunity Act 2010 (Vic) s 8(1). 17 Note 15, s 8(2). 18 DDA, s.6(4). 19 DDA, s6(3). 20 Note 3, p. 304. 21 DDA, s11(1). 22 DDA, s21A and 29A 23 Note 20 24 Queensland Human Rights Commission, Building belonging: Final report and recommendations from the Queensland Human Rights Commission Review of the Anti- Discrimination Act, 2023, Chapter 6, retrieved from https://www.qhrc.qld.gov.au/__data/assets/pdf_file/0017/40355/QHRC-Building- Belonging-Chapter-6.pdf, last accessed 14 December 2025. 25 Australian Human Rights Commission, Respect@Work: Sexual Harassment National Inquiry Report (2020), p. 44, retrieved from https://humanrights.gov.au/our-work/sex- discrimination/publications/respectwork-sexual-harassment-national-inquiry- report-2020, last accessed 14 December 2025. 26 Note 3. 27 See https://www.legislation.gov.uk/ukpga/2010/15/section/149, last accessed 14 December 2025.