SUBMISSION TO THE DISABILITY DISCRIMINATION ACT 1992 REVIEW

Introduction

This submission is made by a multiply neurodivergent person, representing herself, her multiply neurodivergent family, her business and her clients.

It is informed by lived experience, carer experience, and professional expertise.

About EASE Access Consulting

EASE Access Consulting is dedicated to making society more accessible and inclusive. It is a neurodivergent led, disability positive and neuro-affirming business. It has a particular focus on ensuring inclusive and supportive education services, workplaces, events, and community facilities.

Services include:

• Access Auditing and Consulting
• Disability Inclusion Policies and Access Plans
• Workplace Access and Sensory Audits
• Education, Training and Professional Development
  • Disability Awareness and Inclusion
  • Disability Standards for Education
• Coaching - Neurodivergent Self Advocacy

EASE Access Consulting Director, Megan Davison is a long-term member of the Moonee Valley City Council Disability Advisory Committee.

EASE’s Director was also deeply involved in reforms to the Sex Discrimination Act (SDA) Review arising from the Australian Human Rights Commission’s groundbreaking report into sexual harassment. Between 2020-2023, Megan led the Australian mining industry’s comprehensive consultation and response to the report, informing Federal Parliament inquiries and co-drafting guidance material with the Australian Human Rights Commission (AHRC) and the Attorney General’s Department.

She has extensive experience in transformational regulatory and policy reform and there are many synergies between the review of the SDA and DDA.

Participation in the Review

During the consultation period, EASE Access Consulting participated in the

• 15 August - Introduction Webinar
• 21 August - In person at the Victoria Hybrid Community Forum, held in Melbourne
• 9 September - Employment Online Roundtable
• 10 September - Education Online Roundtable
• 12 September - Access and Inclusion Online Roundtable

While comments were recorded in each of the consultations, this submission formally affirms the position of EASE Access Consulting.

SPECIFIC COMMENTS AGAINST EACH PART OF THE REVIEW

Part 1 – Updating understandings of disability and disability discrimination

The current definition disability, in relation to a person, means: (a) total or partial loss of the person’s bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person’s body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that: (h) presently exists; or (i) previously existed but no longer exists; or (j) may exist in the future (including because of a genetic predisposition to that disability); or (k) is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

There are a range of concerns with the current definitions:

1. It uses deficit-based language, where the disability lies with the individual and that the disabled person needs to ‘adapt or be cured’ to fit the environment and society.
2. This is not aligned to the social model and human rights model of disability; where it is affirms that the physical and social ‘environment’ is disabling.
3. It does not acknowledge that a person can experience more than one of the defined disabilities.

4. It does not acknowledge that a person can face discrimination based on a number of personal attributes.
5. Consistent with point 3., a person may face discrimination under all Federal Discrimination Acts and need to raise a complaint against each, creating significant psychological burden

It is important that the definition of disability is reframed as a social construct.

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) defines a disability as any long-term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, may hinder the full and effective participation of disabled people in society on an equal basis with others.

Of particular interest to myself and my family is how neurodivergence is described. It largely relates to definition (f) and can relate also include (g)

I have a number of concerns here:

1. Neurodivergence is cast as a ‘disorder or malfunction’ and interpreted as not ‘normal’.
2. It doesn’t reflect that being neurodivergent is part of human diversity, often bringing unique strengths like creativity, pattern recognition, and focused attention.
3. It focuses on learning only, not how we experience and interact with the world.
4. It has often been interpreted as a deficit in ‘cognitive ability’.
5. (g) references ‘disturbing behaviour’ which is subjective and can be an ableist concept. Reframing to ‘unsafe behaviours’ (to self and others) should be considered.

There is also an ongoing debate over the use of the term ‘disability’ versus ‘impairment’. Impairment is considered to better reflect the social model in that it is society and the environment that impairs someone. However, I am also conscious that the word ‘disability’ brings with it enormous stigma that needs to be eliminated. I recommend the approach taken in the UNCRPD which defines the term disability by a range of impairments.

It is imperative that the definition of disability retains part k) as access to diagnosis, particularly for neurodivergence and psychosocial disabilities is prohibitively expensive and can take many years. Those unable to access a diagnosis must also be protected.

The definition of what is Direct Discrimination and Indirect Discrimination need simplification.

While the Direct definition is clear, the comparator test must be removed and the focus be on the impact or ‘harm’ to the person, described as the ‘detriment’ in the issues paper. The inclusion of a positive duty will eliminate the need for the impacted or ‘harmed’ person to prove a negative.

The Indirect definition allows for enormous subjectivity, which is very unhelpful in law. In my professional experience, this has allowed inadequate responses by education facilities when being asked to provide reasonable adjustments to students.

To help understanding of these definitions, the inclusion of the word ‘harm’ must be incorporated. Harm is a very clear consequence of discrimination. Moving to a prevention- based legislative regime, i.e. preventing discrimination, in fact means preventing harm. No where in the DDA does the word ‘harm’ currently exist.

It is also recommended that there be a very clear acknowledgement of intersectional and intergenerational disability discrimination. Many disabilities are heritable and discrimination against one family member also means discrimination against another family member.

Part 2 – Positive duty to eliminate discrimination

In 2020 I led a significant reform project for the mining industry to reframe sexual harassment as a health and safety concern and utilise the industry’s extensive experience in preventing harm, as the primary duty, to eliminate sexual harassment in the mining industry.

The 3 year-long reform to the Sex Discrimination Act 1984, resulted in substantial changes and the enshrining of a positive duty to eliminate, as far as possible, the following unlawful behaviour from occurring:

• discrimination on the grounds of sex in a work context
• sexual harassment in connection with work
• sex-based harassment in connection with work
• conduct creating a workplace environment that is hostile on the grounds of sex
• related acts of victimisation.

A Positive Duty is about preventing harm - the DDA should be no different. It is not unreasonable, and indeed should be a priority, to expect similar reforms to the Race Discrimination and Age Discrimination Acts in the near future.

Having all discrimination Acts incorporate a positive duty is also essential to acknowledge the intersectionality each person experiences.

Reframing discrimination from complaints-based laws to a preventative laws also helps with society’s understanding and challenge inherent and unconscious biases.

There is also significant overlap between these discrimination Acts and work health and safety laws and intersection with psychosocial harms, and employment laws regarding access to work.

The positive duty should apply to a broad number of duty holders including, businesses, employers, educators, premises, and service providers. As with the SDA reform, the duty should be qualified by what is reasonable and proportionate.

The positive duty should be replicated as a stand-alone duty for the provision of adjustments, to avoid doubt.

The positive duty should also be explicitly stated in each of the Disability Standards.

Part 3 – Encouraging inclusion of people with disability in employment, education

and other areas of public life

EMPLOYMENT

With a doubled rate of unemployment, the current approach to disability inclusive employment is failing us. This leads to entrenched poverty and isolation.

I acknowledge that Disability Standards are out of scope and I am aware that the Disability Standards Education (DSE) is currently going through its required 5 year review.

I do however make a strong recommendation that an additional standard be incorporated under the DDA. This new standard should be the Disability Standard for Employment. The DSE sets the standard for access to education, participation, curriculum, consultation duties, and adjustments. The DSE will be relevant to a person from early childhood to early adulthood (and beyond with life-long education opportunities). There needs to be an equivalent standard for the many decades spent in employment, a nd include the same approach to participation, consultation duties and adjustments. This is a very obvious gap in making workplaces disability inclusive.

My comments here are largely based on neurodivergent experiences.

Recruitment processes are the first barrier to accessing employment for neurodivergent

individuals.

• Interviews rely heavily on social interaction, despite many, many jobs not requiring social skills.
  • Alternate ways of recruitment should allow a person to demonstrate skills and expertise in a way that suits them
• The inherent requirements of a role often specify social aspects of the job, even when these have nothing to do with the competencies sought.
  • Employers should be required to advertise the inherent requirements for a role and provide a variety of ways a person can demonstrate they meet these requirements.
• Many jobs are advertised as remote or hybrid, but this is not honoured
  • When a job can be performed remotely, this must be explicitly specified

Onboarding is often inadequate and there needs to be clear, detailed and logical information, with initial support from an experienced work colleague.

Work environment

• If the role requires in person attendance, a sensory and workplace audit should be undertaken to determine the adjustments the employee requires to be able to access the workplace and undertake work.

The steps to take are as follows:

1. Undertaking an Access Audit of the workplace, with a specific scope on all areas routinely used by the employee
   • entrances and exits
   • bathroom and kitchen facilities
   • light levels
   • background and incidental noise
   • ventilation (including smell extraction)
   • temperature differences
   • workspace features (desk location, seating etc)
   • visual inputs and signage
   • quiet spaces
2. Discussion with the employee to:
   • understand sensory profile
   • communication style and preferences (verbal, written and group requirements)
   • task requirements and process
3. Discussion with managers about work program, task design, and any existing adjustments.
4. Written report with neuro-inclusive recommendations tailored to the individual employee and workplace that becomes the agreed individual employment plan .

PUBLIC LIFE

Visible leaders are essential, in line with ‘you can’t be what you can’t see’, in all aspects of public life. It is great that we are seeing more political representatives with disabilities.

Access to premises is still inadequate. Attention has been given to enable access for persons with visible disabilities to varying degrees and success. Very little attention has been given to access requirements for persons with non-visible disabilities, and specifically those who are neurodivergent or have psychosocial disabilities. The sensory environment is an extremely large component of any premises.

With a positive duty, it is hoped that all premises will be required to have a base level access audit to identify any access barriers and receive recommendations to remove them. It is recommended that the government fund a grant initiative to assist public facing businesses to fund these audits.

A fund should also be established for lived experience disability inclusion training for businesses and premises. Lived experienced providers are critical for imparting practical and meaningful information.

EDUCATION

The Bachelor of Education Degree needs to be rewritten to include detailed subjects on disability inclusion and obligations under the DSE. Whilst I acknowledge that this will take considerable time to do and would be of value to the next generation of teachers, Governments can mandate annual specific disability inclusion professional development for the very large existing teacher cohort. In addition, those teachers wanting to enter the Principal Class, should be required to undertake more detailed disability inclusion professional development and training in the DSE.

At the tertiary level, when designing course content, the inherent requirements for the course must acknowledge diversity in learning styles and provide for a wide range of assessment methods that align with these learning styles. Many courses also continue to include ableist language and assumptions around competence.

Regarding Recommendation 7.2 - Exclusionary discipline and suspension, it is critical that the DDA make it unlawful for an educational authority to discriminate against a student of excluding them on the grounds of a student’s disability. This proposed amendment must apply to ALL education authorities, facilities and services and be made explicit.

The majority of suspensions and exclusions are borne by students with disabilities, and specifically by autistic and other neurodivergent individuals. Education authorities interpret all behaviour as conscious and wilful; however, this is rarely the case with neurodivergent students as it is a nervous system stress response. If an education facility or service provided a disability inclusive environment with adjustments, the number of suspensions and exclusions will likely significantly decline. In addition, prior to any suspension or exclusion, the education authority must consider the student’s disability and what the school is doing to meet its obligations under the DSE for the student in the first instance.

I will be providing a separate submission to the review of the DSE.

Part 4 – Improving access to justice

I have limited direct experience of the justice system, however it is essential that law enforcement agencies are provided comprehensive disability awareness training. Many

disabilities are non-visible and some behaviours can mimic what law enforcement officers assume are antisocial behaviour (alcoholism, drug use, ‘violent’ physical movements etc.).

It is critical that each individual is presumed competent rather than have either conscious or unconscious bias placed upon them. Clarifying the legal obligations of law enforcement officers to ensure that all persons with disability are protected rom unlawful discrimination when engaging with officers, regardless of the engagement, is strongly supported.

The Victorian Police force rolled out Disability Liaison Officers in 2024. Whilst a great initiative, these officers were also front-line operational officers and that was prioritised. In this circumstance, the DLOs should be dedicated public facing officers that are outside of the day-to-day operational requirements.

Part 5 – Exemptions

No comments

Part 6 – Modernising the Disability Discrimination Act

Disability Action Plans

I support the proposal by the AHRC that introduce further quality checks to the action plan process, however, I recommend replacing their use of the word ‘may’ to ‘shall’.

Disability Standards

The Standards are little known across society. That they exist is largely unknown, and therefore also unknown is their mandatory status, relationship to the DDA, obligations on entities, levels of compliance, and how they are enforced.

The positive duty inserted into the DDA would also apply to the Standards, however an explicit duty is required. Also, if enacted the same as in the SDA, will empower the AHRC with some regulatory and enforcement obligations. Whilst systemic powers were provided to the AHRC in 2022, there has been limited time for any investigations to occur. Even then only recommendations are provided in a report to the Attorney General. Providing the AHRC with additional powers to enforce compliance is required in the DDA and extended to the Standards.

An obligation on duty holders under the Standards to report compliance against the standards should also be included.

Linkage to UNCRPD

It is important that Australia’s obligations under the convention be in clude in the objects provision of the DDA and the DDA be expressly required to be inter[preted in line with human rights treaties.

Adjustments

It is important to retain the term ‘adjustment’. The word ‘support’ implies a person is presumed incompetent, or a lesser person.

Removal of the term ‘reasonable’ from adjustments is strongly recommended. Reasonable is subjective and provides great uncertainty to both the disabled person and the duty holder. Many adjustments by nature are by default reasonable as they are person centred, free and do not impact others.

Unjustifiable hardship

The ability of a duty holder to claim unjustifiable hardship would still apply with the removal of the term reasonable.

Any claim must require consultation with the person (or their representative) requesting the adjustment, including identifying alternate adjustments and providing written reasons as to why the adjustment is being denied under the unjustifiable hardship provision. There also must be consideration of the impact to the person requesting the adjustment.

The positive duty must include the requirement for duty holders to have a disability inclusion plan that clearly outlines the process for adjustments.

Intersectionality

As mentioned earlier, the DDA is limited, by its nature to disability discrimination, however many disabled persons have intersecting attributes that overlap with the other three federal discrimination laws. This needs to be acknowledged.

Intergenerational

The DDA needs to acknowledge intergenerational disability. As mentioned earlier, many disabilities are heritable and discrimination against one family member can also means discrimination against another family member by virtue of disability.

Part 7 – Further options for reform

As mentioned under Part 3, it is time for a new standard relating to employment – The Disability Standards for Employment.

Megan Davison Director EASE Access Consulting