THE UNIVERSITY OF MELBOURNE

Submission to the Australian Government review of the Disability Discrimination Act 1992 | 14 November 2025

Acknowledgement of Country

The University of Melbourne acknowledges the Traditional Owners of the unceded land on which we work, learn and live: the Wurundjeri Woi-wurrung and Bunurong peoples (Burnley, Fishermans Bend, Parkville, Southbank and Werribee campuses), the Yorta Yorta Nation (Dookie and Shepparton campuses), and the Dja Dja Wurrung people (Creswick campus).

The University also acknowledges and is grateful to the Traditional Owners, Elders and Knowledge Holders of all Indigenous nations and clans who have been instrumental in our reconciliation journey.

We recognise the unique place held by Aboriginal and Torres Strait Islander peoples as the original owners and custodians of the lands and waterways across the Australian continent, with histories of continuous connection dating back more than 60,000 years. We also acknowledge their enduring cultural practices of caring for Country.

We pay respect to Elders past, present and future, and acknowledge the importance of Indigenous knowledge in the Academy. As a community of researchers, teachers, professional staff and students we are privileged to work and learn every day with Indigenous colleagues and partners.

The Disability Inclusive Law & Policy Hub recognises that First Nations people with disability face additional barriers to realising their rights, and that the work of community-led organisations is vital to achieving disability justice. See First People Disability Network for more information: https://fodn.org.au/our-work/.

Language note

We acknowledge that people identify in various ways and have preferred language to communicate their identity related to disability. This submission follows People with Disability Australia’s advice in describing disability.1 In doing so, it mainly uses a person-first approach, that is, ‘people with disability’.

Abbreviations and short titles

AHRC	Australian Human Rights Commission
CRPD	Convention on the Rights of Persons with Disabilities (United Nations Convention on the Rights of Persons with Disabilities)
CRPD Committee	Committee on the Rights of Persons with Disabilities (the UN treaty-body that oversees the CRPD)
DDA	Disability Discrimination Act 1992 (Cth)
Disability Royal Commission	Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
MDI	Melbourne Disability Institute
SDA	Sex Discrimination Act 1984 (Cth)
VCAT	Victorian Civil and Administrative Tribunal

1 People with Disability Australia, What Do I Say? A Guide to Language about Disability (Guidelines, 2021) https://pwd.org.au/resources/disability-info/language-guide/.

About the Disability Inclusive Law & Policy Hub
About the Hub’s submission
Executive summary
Recommendations
A Disability Rights Act and a Commonwealth Human Rights Act
Response to Part 1 - Updating understanding of disability discrimination
Definition of disability
Addressing intersectionality
Reasonableness
Interpreting the DDA in line with the CRPD
Response to Part 2 — Positive duty to eliminate discrimination
Response to Part 4 — Improving access to justice
Response to Part 5 — Exemptions
Section 52 (Migration) — Repeal or sharp narrowing
Response to Part 7 — Further options for reform
Preventing discrimination in legal decision-making
Legislative alignment to enable DDA implementation

About the Disability Inclusive Law & Policy Hub

The Disability Inclusive Law & Policy Hub is based at Melbourne Law School, The University of Melbourne, and is supported by the Melbourne Disability Institute (MDI). The Hub, led by Associate Professor Anna Arstein-Kerslake, an international leader in disability rights, brings together interdisciplinary scholars in disability law and policy. Its work complements several other MDI-supported research hubs across the University of Melbourne.

About the Hub’s submission

Thank you for the opportunity to contribute to the review of the Disability Discrimination Act 1992 (Cth) (‘DDA’). We recognise the important, thorough, and careful work undertaken by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (‘Disability Royal Commission’), and we want to thank all those who provided evidence and all those who worked hard to develop a reform agenda. In addition, we want to recognise the significant work undertaken by the Attorney-General’s Office throughout this review, including the extensive Issues Paper and wide consultation. We appreciate the Australian Government’s commitment to modernising the Act.

This submission focuses on selected questions from the Issues Paper based on the expertise and partnerships of the Hub and other MDI-supported research hubs across the University. It proposes targeted, workable amendments that align the DDA with contemporary human rights standards while maintaining the Act’s existing breadth of coverage.

We also sought not to duplicate the excellent work done by others, so where relevant, we have chosen to endorse and build on other submissions. In particular, we want to highlight our endorsement of the submissions developed by People with Disability Australia, Children and Young People with Disability Australia, the La Trobe Law School and the Australian Discrimination Law Experts Group.

This submission has been prepared by:

Associate Professor redacted: s47F - Personal privacy Director of Disability Inclusive Law & Policy Hub, Melbourne Law School, The University of Melbourne
Dr redacted: s47F - Personal privacy Research Fellow, Disability Inclusive Law & Policy Hub, Melbourne Law School, The University of Melbourne
Professor redacted: s47F - Personal privacy, Executive Chair and Director, Melbourne Disability Institute, The University of Melbourne
Dr redacted: s47F - Personal privacy Social Work Disability Research Hub, Director of Teaching and Learning, Department of Social Work, The University of Melbourne
redacted: s47F - Personal privacy Graduate Researcher, Melbourne Law School, The University of Melbourne
Dr redacted: s47F - Personal privacy Melbourne Disability Institute Honorary Fellow, The University of Melbourne
redacted: s47F - Personal privacy The University of Melbourne, Human Rights Lawyer
Professor redacted: s47F - Personal privacy European Disability Forum Professor of European Disability Law, Maastricht University, Netherlands

With thanks to colleagues and community partners who contributed insights to this submission.

This submission has been endorsed by:

Professor redacted: s47F - Personal privacy, Professor of Law and Professorial Fellow in Psychiatry, The University of Melbourne, Barrister and Mediator, Castan Chambers
Professor redacted: s47F - Personal privacy, Professor of Disability & Inclusion, The University of Melbourne
Associate Professor redacted: s47F - Personal privacy, School of Law, University of Galway, Ireland

Executive summary

This submission, prepared by the Disability Inclusive Law & Policy Hub at Melbourne Law School, offers a focused, evidence-based set of reforms to bring the Disability Discrimination Act 1992 (Cth) (‘DDA’) into line with contemporary human-rights standards, including the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’). It prioritises practical, scalable change: modernising definitions and interpretation; recognising and remedying intersectional harms; embedding proactive duties and effective enforcement; establishing equality in recognition before the law; and removing legislative exemptions that undermine equality.

In addition, as a starting point, the Hub proposes a robust legislative architecture to complement the DDA, proactively address disability discrimination and embed disability rights. These proactive legislative tools are critical for reducing reliance on retroactive remedies to address discrimination. One option is a Disability Rights Act, as recommended by the Disability Royal Commission. Such an Act could establish disability-specific substantive rights, combined grounds protection, positive operational duties and accessible remedies. This disability-specific legislation, combined with a Commonwealth Human Rights Act with explicit disability provisions, could serve to normalise disability rights-based decision-making across government and beyond. Together, these measures would reduce reliance on retrospective and reactive litigation by making prevention, accessibility and systemic accountability routine features of policy and service delivery. In the alternative, even in the absence of a specific Disability Rights Act, a Commonwealth Human Rights Act with explicit disability provisions would, on its own, play a very important role in embedding disability rights and non-discrimination across Australia. One advantage of a Commonwealth Human Rights Act with explicit disability provisions would be that it would have the potential to be a strong platform for responding to intersectional, cumulative disadvantage across disability and other marginalised groups.

In relation to the DDA itself, this submission recommends key technical reforms, including modernising the DDA’s definition of disability to a human-rights framing (recognising the interaction of impairment with attitudinal and environmental barriers, and explicitly covering episodic, psychosocial and neurodivergent experiences); and inserting an interpretive clause requiring decision-makers to prefer CRPD-consistent readings of the Act. This submission also calls for express statutory recognition of combined-grounds claims so that intersectional discrimination (for example, disability plus gender, race or age) can be identified and remedied.

Central to the Hub’s proposals is a positive duty on all DDA duty-holders to take proportionate measures to achieve equality and prevent disability discrimination, paired with a strengthened, proactive enforcement framework. This framework for the DDA, paired with the complementary legislation discussed above (a Disability Rights Act and/or a Commonwealth Human Rights Act), would empower an appropriately resourced Australian Human Rights Commission (‘AHRC’), to undertake systemic monitoring and investigations, require proportionate disability action plans from duty-holders, and use a graduated toolkit to ensure compliance (guidance, compliance notices, enforceable undertakings and, for serious or repeated breaches, civil remedies), all developed in co-design with people with lived experience.

This submission also addresses priority sectoral issues: it urges that policing and justice functions be explicitly subject to the DDA’s services provisions; it recommends repeal (or sharp narrowing and oversight) of the DDA’s migration exemption (s 52); and, importantly, it proposes an express prohibition on discriminatorily denying, restricting or conditioning legal capacity on the basis of disability, recognising decision-making and communication support as forms of adjustment.

Finally, the Hub stresses that meaningful reform requires complementary legislative alignment: a targeted work program to review and amend interacting Commonwealth laws and policies so that DDA reforms are practical, enforceable and effective.

The recommendations that follow this summary set out these proposals in concise, actionable terms. More details about implementation, oversight and resourcing arrangements necessary to make the reforms effective are found in the main body of this submission. The Hub would also be honoured to supplement this submission with evidence to any Parliamentary Committees established to give oversight to the review of the DDA in response to draft legislation.

Recommendations

Recommendation 1: An Australian Disability Rights Act

Enact an Australian Disability Rights Act to give domestic, enforceable effect to Australia’s obligations under the CRPD and to establish disability-specific substantive rights, positive public-authority duties and accessible remedies as set out by the Disability Royal Commission.

Recommendation 2: A Commonwealth Human Rights Act

Develop a Commonwealth Human Rights Act that includes explicit disability provisions and public-authority duties so that disability-specific protections in the Australian Disability Rights Act are reinforced by a government-wide, rights-based decision-making architecture.

Recommendation 3: Implement reforms through a principled package of oversight, co-design and adequate resourcing

Any Disability Rights Act and Human Rights Act be must implemented through a coordinated package that establishes and properly funds an empowered AHRC (with compliance, inquiry and enforcement functions); funds co-designed education and training for public servants and regulated entities; requires public reporting and independent evaluation; and provides transitional resourcing so mainstream services (including the National Disability Insurance Scheme) can meet new duties without disrupting supports.

Recommendation 4: A human rights model definition of disability

Modernise the definition of disability in the DDA, reflecting the CRPD’s human rights model of disability while preserving the DDA’s breadth.

Recommendation 5: Allow claims based on multiple disabilities and combined protected attributes

Expressly allow claims based on multiple disabilities or combined protected attributes to ensure the DDA recognises and remedies compounding discrimination experienced by people with intersecting attributes.

Recommendation 6: Remove ‘reasonable’ qualifier from ‘adjustments’

Amend the DDA by replacing all references to ‘reasonable adjustments’ with ‘adjustments’ as per the Disability Royal Commission Recommendation 4.25.

Recommendation 7: Include CRPD in DDA’s Objects (s 3)

Include the CRPD in the DDA’s Objects (s 3) and add an explicit beneficial interpretation clause.

Recommendation 8: Include an equality realisation clause in the DDA’s Objects (s 3)

In addition to Recommendation 7, include a clause in the DDA’s Objects to promote and facilitate the realisation of equality for people with disability, consistent with the CRPD, ‘by redressing disadvantage; countering prejudice, stigma, stereotyping, vilification and violence; combatting political and social exclusion; and accommodating difference.’

Recommendation 9: Create a positive duty

Create a positive duty on all duty holders to take proportionate measures to prevent disability discrimination and promote equality in all areas of activity under the Act, including disability standards.

Recommendation 10: Enforcement framework

Ensure the positive duty in Recommendation 9 is backed by a proactive enforcement framework by amending relevant law to empower the AHRC, to initiate systemic monitoring, investigations and inquiries (not only act on individual complaints); require proportionate, annual disability action plans from duty-holders for regulator review; provide a graduated enforcement toolkit (guidance and capacity-building, compliance notices, enforceable undertakings and, in serious or repeated cases, civil remedies or court enforcement); mandate that indicators and enforcement tools are to be co-designed with people with lived experience; and ensure dedicated resourcing, proportionality safeguards (including staged commencement for very small/volunteer entities) and review rights for regulated entities.

Recommendation 11: Implement indicators to realise equality

The AHRC work with disability representative organisations and industry sector bodies to develop disability equality indicators based on the CRPD Committee’s General Comment No. 6, including the four dimensions of inclusive equality. Duty bearers should, under the positive duty, be required to report against those indicators to the AHRC.

Recommendation 12: Policing is service provision

Make it explicit that the DDA’s ‘services’ provisions apply to policing activities involving suspects and accused persons at all stages, from first contact through investigation, charge, bail and custody, so discriminatory treatment by police is unlawful whether a person is a victim, witness, member of the public, or under police scrutiny.

Recommendation 13: DDA should have jurisdiction over the Migration Act 1958

Repeal s 52 of the DDA. If immediate repeal is not feasible, narrow it sharply with a built-in sunset and independent oversight.

Recommendation 14: Non-discrimination in legal decision-making

Add an express provision to the DDA making it unlawful to discriminatorily deny, restrict or condition a person’s legal capacity on the basis of disability, and confirm that decision-making support and communication support are forms of adjustments.

Recommendation 15: Align all Commonwealth legislation with DDA

Implement a work program to review and reform all government legislation that is critical to allow for meaningful implementation of the DDA.

A Disability Rights Act and a Commonwealth Human Rights Act

Recommendation 1:	Enact an Australian Disability Rights Act to give domestic, enforceable effect to Australia’s obligations under the CRPD and to establish disability-specific substantive rights, positive public-authority duties and accessible remedies as set out by the Disability Royal Commission.
An Australian Disability Rights Act

Recommendation 2:	Develop a Commonwealth Human Rights Act that includes explicit disability provisions and public-authority duties so that disability-specific protections in the Australian Disability Rights Act are reinforced by a government-wide, rights-based decision-making architecture.
A Commonwealth Human Rights Act

Recommendation 1:	Any Disability Rights Act and Human Rights Act be must implemented through a coordinated package that establishes and properly funds an empowered AHRC (with compliance, inquiry and enforcement functions); funds co-designed education and training for public servants and regulated entities; requires public reporting and independent evaluation; and provides transitional resourcing so mainstream services (including the National Disability Insurance Scheme) can meet new duties without disrupting supports.
Implement reforms through a principled package of oversight, co-design and adequate resourcing

Recommendation 1:

Implement reforms through a principled package of oversight, co-design and adequate resourcing

Strengthening the DDA will require more than technical amendments to remedies and processes: it will require an operational rights architecture that embeds prevention, clarity of duties, and systemic accountability across government.2

Accordingly, the Hub proposes a two-strand complementary approach. First, a Disability Rights Act would provide disability-specific substantive rights, combined-grounds protection, and positive, operational duties tailored to the lived realities of people with disability, measures the Disability Royal Commission identified as necessary to prevent rights failures that discrimination law alone does not address.3 Second, a Commonwealth Human Rights Act that includes explicit disability provisions would normalise rights-respecting, public-authority decision-making across agencies - reinforcing the Disability Rights Act’s preventative effect and unifying the fragmented federal discrimination framework.4 Together, these

2 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission), Final report: Volume 4 — Realising the human rights of people with disability (Commonwealth of Australia, 2024), Vol 4, pp163—164.

3 Disability Royal Commission, Final report: Volume 4, p164; Recommendation 4.5; Recommendation 4.10.

4 Disability Royal Commission, Final report: Volume 4, pp187–190

frameworks would make the DDA more effective, reduce reliance on reactive after-the-fact litigation, and improve outcomes for people who experience intersectional discrimination.5

The Disability Royal Commission concluded that a dedicated Disability Rights Act was necessary to translate and implement the CRPD into an operational, enforceable Commonwealth framework. It recommended that the Government commit to enacting a Disability Rights Act as part of a package of reforms to prevent and remedy systemic rights failures experienced by people with disability.6

The Commission set out detailed, disability-specific obligations it considered necessary, including substantive rights, a right to non-discrimination that expressly covered combined protected grounds claims where disability was involved, positive procedural duties for Commonwealth entities (disability impact assessment, consultation with people with disability, accessible information and interpreter supports), and a compliance and remedies architecture to make rights real in practice.7

There has also been sustained advocacy for a Commonwealth Human Rights Act, and the AHRC has developed a substantive model and national consultation program (the Free & Equal project) that proposes public-authority duties and other mechanisms to embed rights consideration routinely across government decision-making.8

The Disability Royal Commission engaged with the public-authority and positive-duty ideas found in state and territory human rights legislation and observed that a federal Human Rights Act (with express disability provisions) would operate compatibly with the Commission’s proposed Disability Rights Act duties by reinforcing human rights-based decision-making across Commonwealth entities and helping prevent rights failures at a systemic level.9

International practice demonstrates that disability-specific statutes can and do sit alongside wider human-rights or accessibility frameworks rather than being mutually exclusive. For example, Ireland, India, and Canada have disability-specific / accessibility statutes that operate alongside broader human rights protections, providing workable precedents for a two-track model (a disability-specific statutory instrument combined with a general Human Rights Act that embeds public authority duties).10

5 Disability Royal Commission, Final report: Volume 4, pp111—113; pp230–231

6 Disability Royal Commission, Final report: Volume 4, pp163—164.

7 Disability Royal Commission, Final report: Volume 4, pp164; 172–173; Recommendation 4.5; Recommendation 4.10.

8 Australian Human Rights Commission, Free & Equal project — ‘An Australian conversation on human rights’ / model Human Rights Act materials, https://humanrights.gov.au/free-and-equal

9 Disability Royal Commission, Final report: Volume 4, Vol 4, pp187—190; Recommendation 4.10.

10 Disability Act 2005 (Ireland); Rights of Persons with Disabilities Act, 2016 (India); Accessible Canada Act, 2019 (Canada).

Response to Part 1 - Updating understanding of disability discrimination

Definition of disability

Issues Paper	How should disability be defined in the Disability Discrimination Act? What factors should be considered in developing a new definition of disability?
Questions 1 & 2

Recommendation 4:	Modernise the definition of disability in the DDA, reflecting the CRPD’s human rights model of disability while preserving the DDA’s breadth.
A human rights model definition of disability

The current definition of disability encompasses a wide range of impairments. However, it relies on deficit-framed terms (e.g., ‘malfunction’, ‘malformation’, ‘disfigurement’, ‘disturbed behaviour’) and does not state that disability arises from the interaction between impairment and attitudinal and environmental barriers.11

The definition should retain its present, past, future and imputed coverage so that settled protections are not narrowed. Its opening clause should be modernised to a human rights chapeau that recognises disability as arising from the interaction between impairments and attitudinal and environmental barriers, in line with the CRPD; critically, it should not import any ‘long-term’ or duration threshold, so that people with episodic, fluctuating or temporary impairments remain protected.12

The itemised list in the definition should be de-pathologised, replacing deficit-framed terms such as ‘malfunction’, ‘malformation’, ‘disfigurement’ and ‘disturbed behaviour’ with neutral, inclusive language. The text should explicitly include psychosocial disability without implying diagnosis or clinical severity thresholds, and acknowledge neurodivergence, using strengths-based language that recognises the differences in learning, communication, information processing, and behaviour rather than ‘disorder/malfunction’ frames.

Finally, drafting should be culturally responsive, ensuring that it captures cultural, linguistic, and community variations, including those of First Nations and migrant communities, to enable the definition to read consistently across diverse settings. Identifying suitable language should be done through close consultation and active involvement of these communities in the drafting.

11 Convention on the Rights of Persons with Disabilities, opened for signature 24 January 2007, 2515 UNTS 3 (entered into force 3 May 2008) (‘CRPD’), Preamble (e) & Article 1.

12 Article 1 of the CRPD is not a definition, only stating the people with disability ‘include’ those — therefore this is still consistent with a CRPD approach to the DDA.

Addressing intersectionality

Issues Paper	Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes? 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?
Questions 3 & 4

Recommendation 5:	Expressly allow claims based on multiple disabilities or combined protected attributes to ensure the DDA recognises and remedies compounding discrimination experienced by people with intersecting attributes.
Allow claims based on multiple disabilities and combined protected attributes

This reform aligns the DDA with the CRPD. The CRPD is the first UN human rights treaty to expressly include multiple and aggravated forms of discrimination in the Preamble (p). It enumerates ‘forms of discrimination’ that interact with disability to exacerbate disadvantage, such as: ‘race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status’. In addition, Australia is obligated under article 6(1) to ‘recognize that women and girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms’.(emphasis added).

Importantly, this reform also responds to lived experience testimony from people with disability who describe harms that arise at the intersection of disability and other attributes.13

The AHRC has recommended that a new provision be included in all federal discrimination laws ‘which identifies that discrimination may occur on the basis of … a particular combination of 2 or more protected attributes’.14 Intersectionality is also recognised in other Australian legislation.15

The DDA should be amended to expressly provide that discrimination may occur on the basis of multiple disabilities or a combination of one or more disabilities and one or more of the protected attributes in other federal discrimination laws. Consideration should be given to extending this provision to all of the attributes recognised in the CRPD.

13 See especially: Scott Avery, Culture is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network (Australia), 2018); Furneaux, Samantha and Dina Korkees, ‘We Need to Raise Our Voices: Advice from People of Refugee Backgrounds Living with Disabilities and Their Carers (The Victorian Foundation for Survivors of Torture Inc., 2019); Abdi, Amir and Philippa Duell-Piening, Submission to the CRPD General Discussion on Article 27 (Refugee Council of Australia, 2021) https://www.ohchr.org/Documents/HRBodies/CRPD/DGD/2021/RCA.docx

14 Australian Human Rights Commission, Free and Equal: Revitalising Australia’s Commitment to Human Rights, (Final Report, 2023), p88, Reform 35.

15 Disability Rights, Inclusion and Safeguarding Act 2024 (Tas) ss 5 and 17; Disability Inclusion Act 2024 (ACT) Dictionary and s 6.

Reasonableness

| Issues Paper | 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

Please expand on your response. | | — | — | | Question 8 | |

Recommendation 6:	Amend the DDA by replacing all references to ‘reasonable adjustments’ with ‘adjustments’ as per the Disability Royal Commission Recommendation 4.25.
Remove ‘reasonable’ qualifier from ‘adjustments’

The Hub supports the case made by Children and Young People with Disability Australia in their submission that ‘[t]he term “reasonable” has led to the belief that adjustments were open to interpretation through the lens of what is “reasonable”, rather than a fundamental human right’.16 This lived experience testimony is echoed by the arguments made by the Australian Discrimination Law Experts Group, which state that, ‘[t]he reasonableness standard has been the subject of sustained criticism by discrimination law scholars because of the risk that it perpetuates the status quo’.17

The Hub supports the implementation of the Disability Royal Commission Recommendation 4.25 that the DDA ‘should be amended by replacing all references to ‘reasonable adjustments’ with ‘adjustments’.18

16 Children and Young People with Disability Australia, Strengthening the Disability Discrimination Act for children and young people with disability: a submission by Children and Young People with Disability Australia to the Attorney-General’s review of the Disability Discrimination Act (2025) p11.

17 Australian Discrimination Law Experts Group, Submission in Response to the Commonwealth Attorney-General’s Department Review of the Disability Discrimination Act, 16 October 2025, p44.

18 Disability Royal Commission, Final report: Volume 4, p309

Interpreting the DDA in line with the CRPD

Issues Paper	Should the Disabilities Convention be included in the objects provision of the Disability Discrimination Act? 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?
Questions 10 & 11

Recommendation 7:	Include the CRPD in the DDA’s Objects (s 3) and add an explicit beneficial-interpretation clause.
*Include CRPD* in DDA’s Objects (s 3)**

Recommendation 8:	In addition to Recommendation 7, include a clause in the DDA’s Objects to promote and facilitate the realisation of equality for people with disability, consistent with the CRPD, ‘by redressing disadvantage; countering prejudice, stigma, stereotyping, vilification and violence; combatting political and social exclusion; and accommodating difference.’
*Include an equality realisation clause in the DDA’s Objects (s 3)*

Placing the CRPD in the Objects (s 3) moves it from merely permissible extrinsic material to a purposive compass for reading and applying the Act. Under purposive interpretation principles, naming the CRPD directs courts and administrators to prefer CRPD-consistent constructions, not merely consult the Convention if ambiguity arises. The addition of the CRPD to the DDA text provides symbolic clarity and practical effect across everyday decision-making (e.g., adjustments, unjustifiable hardship, access to justice), aligning the DDA with contemporary Commonwealth disability statutes and Australia’s obligations as a CRPD State Party. Complementing this, a beneficial interpretation provision would instruct decision-makers to prefer the construction that most protects the rights of people with disability, so far as consistent with the Act’s text, context, and purpose. Lowering the activation threshold from ‘may consider’ to ‘should prefer’ where statutory language allows, and supports nationally consistent, rights-affirming administration.

In addition, the inclusion of an objective in the DDA to advance inclusive equality recognises that the goal of the Act is not just the prevention of discrimination but the achievement of substantive equality. In 2018, the United Nations Committee on the Rights of Persons with Disabilities (‘CRPD Committee’) introduced General comment No. 6 (2018) on equality and non-discrimination (‘General Comment 6’) to clarify Article 5 and affirm the central place of equality in the CRPD.19 General Comment 6 treats inclusive equality as the interpretive basis of the CRPD.20 It states that the CRPD is based on ‘inclusive equality’, which goes beyond substantive equality and embraces:

(a) a fair redistributive dimension to address socioeconomic disadvantages; (b) a recognition dimension to combat stigma, stereotyping, prejudice and violence and to recognize the dignity of human beings and their intersectionality; (c) a participative dimension to reaffirm the social nature of people as members of social groups and the full recognition of humanity through

19 Committee on the Rights of Persons with Disabilities, General Comment No 6: Equality and Non-Discrimination, 19th Sess, UN Doc CRPD/C/GC/6 (26 April 2018, Adopted 9 March 2018).

20 Ibid [11].

inclusion in society; and (d) an accommodating dimension to make space for difference as a matter of human dignity.21

An object in the DDA to achieve inclusive equality aligns federal law with Australia’s treaty obligations and guides the construction of duties and remedies.

Several jurisdictions have adopted statutory language that implements substantive, inclusive, and/or transformative equality, thereby requiring measures to address structural disadvantage, stigma and unequal outcomes rather than only prohibiting formal discrimination. These include:

Victoria’s Equal Opportunity Act 2010, which provides that an objective of the Act is

(d) to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that—

(i) discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society;

(ii) equal application of a rule to different groups can have unequal results or outcomes;

(iii) the achievement of substantive equality may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures;22 (emphasis added)
The United Kingdom’s Equality Act 2010, which provides for a Public Sector Equality Duty;23
The Canadian Employment Equity Act, which provides that its statutory purpose is ‘to achieve equality in the workplace’ and employment equity ‘means more than treating persons in the same way but also requires special measures and the accommodation of differences’.24

Suggested drafting

Add to s 3 Objects:
- ‘to, in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities’.
- ‘to promote and facilitate the realisation of equality for people with disability, consistent with the Convention on the Rights of Persons with Disabilities, by redressing disadvantage; countering

21 Ibid. The four dimensions of ‘inclusive equality’ adopted by the General Comment are almost identical to Sandra Fredman’s four dimensions of ‘substantive’ or ‘transformative equality. See University of Bristol’s submission to the CRPD Committee for GC 6 - ‘We recommend that the Committee explicitly adopt Fredman’s four-dimensional model of transformative equality… redressing socio-economic disadvantage; addressing stigma, stereotyping, prejudice and violence; enhancing participation; and accommodating difference by achieving structural change.’ University of Bristol (Executive summary & ‘Transformative Equality’ section of the submission to the CRPD Committee for GC 6).

22 Equality Act 2010 (Vic) s 3(d)

23 Equality Act 2010 (UK) s 149

24 Employment Equity Act (SC 1995, c 44) s.2

prejudice, stigma, stereotyping, vilification and violence; combatting political and social exclusion; and accommodating difference’.25

New interpretation provision — Beneficial interpretation: ‘In interpreting and applying this Act, a decision-maker must, so far as is consistent with the text, context and purpose of the Act, prefer the interpretation that is most beneficial to people with disability, and that is consistent with Australia’s obligations under international human rights treaties, including the Convention on the Rights of Persons with Disabilities’.

The clause does not override clear statutory text or create a free-standing cause of action for treaty breach. Its operational payoff is to steer close cases towards CRPD-consistent outcomes, for example, by reading adjustments to include decision-making and communication support, and calibrating unjustifiable hardship with equality and participation in mind. It equips tribunals and agencies, not just courts, to make consistent, human rights-oriented decisions.

25 In this suggested wording, the word ‘inclusive’ that is used in the General Comment 6 has been omitted and the term ‘equality’ alone is used to avoid confusion since a variety of terms in the evolution of the meaning of equality in human rights law have been used to describe a substantive form of equality. It is necessary that the wording in s3 includes the four dimensions as drafted to make clear that the objective refers to what General Comment 6 calls inclusive inequality and what has been called substantive/ transformative equality.

Response to Part 2 — Positive duty to eliminate discrimination

Issues Paper	If there was a positive duty in the Disability Discrimination Act, who should it apply to? 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? 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. Should there be exceptions or limits to the application of a positive duty?
Questions 12 - 15

Issues Paper

If there was a positive duty in the Disability Discrimination Act, who should it apply to? 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? 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. Should there be exceptions or limits to the application of a positive duty?

Questions 12 - 15

Recommendation 9:	Create a positive duty on all duty holders to take proportionate measures to prevent disability discrimination and promote equality in all areas of activity under the Act, including disability standards.
Create a positive duty

Recommendation 10:	Ensure the positive duty in Recommendation 9 is backed by a proactive enforcement framework by amending relevant law to empower the AHRC, to initiate systemic monitoring, investigations and inquiries (not only act on individual complaints); require proportionate, annual disability action plans from duty-holders for regulator review; provide a graduated enforcement toolkit (guidance and capacity-building, compliance notices, enforceable undertakings and, in serious or repeated cases, civil remedies or court enforcement); mandate that indicators and enforcement tools are to be co-designed with people with lived experience; and ensure dedicated resourcing, proportionality safeguards (including staged commencement for very small/volunteer entities) and review rights for regulated entities.
Enforcement framework

Recommendation 10:

Enforcement framework

Recommendation 11:	The AHRC work with disability representative organisations and industry sector bodies to develop disability equality indicators based on the CRPD Committee’s General Comment No. 6, including the four dimensions of inclusive equality. Duty bearers should, under the positive duty, be required to report against those indicators to the AHRC.
Implement indicators to realise equality

Research undertaken into the inclusion and exclusion experiences of people with disability in their communities found that a key feature of inclusion is not only a sense of safety and belonging, but also that

inclusion should be pursued by communities themselves, not only demanded by people with disability.26 Research participants described the burden and exhaustion felt in always being the individuals demanding change or accommodation. A measure of a truly inclusive community was one in which the responsibility for inclusion was shared. The experiences documented in this research speak to the clear need for a positive duty within the DDA. A positive duty will shift the burden in a more balanced way to duty-holders as they sit within communities, raising expectations on duty-holders to be proactive and, in turn, shifting the language and assumptions of communities as a whole.

Building on that evidence, the positive duty should be scaled by entity size, nature, and resources, as well as by practicability and cost. It should be supported by a staged commencement for small entities and underpinned by AHRC powers to inquire, impose civil penalties, issue compliance notices, accept enforceable undertakings, and publish sector guidance and model policies. The AHRC must be appropriately resourced to undertake these educational and enforcement activities. There should also be transparency via public reporting of the enforcement activities of the AHRC. Implementation should include steps to raise awareness and coordinate with Work Health and Safety, privacy, and online safety regulators to avoid duplication. No blanket exemptions are needed beyond proportionality settings and the unjustifiable hardship defence.

A positive duty under the DDA should not depend primarily on individual complaints for enforcement; rather, enforcement must be geared to identifying and remedying systemic practices and policies through proactive regulatory action. The Disability Royal Commission made the same point,27 recommending that enforcement of a positive duty focus on systemic investigation and compliance activity by empowered regulators rather than relying on complainants to trigger action. To achieve this, the AHRC should be given explicit powers to undertake compliance monitoring, systemic investigations and inquiries, to require and assess disability action plans from duty-holders, to issue compliance notices and accept enforceable undertakings, and, where proportionate, to seek civil penalties or court enforcement in respect of serious or systemic breaches. These functions should be conducted in genuine partnership with people with lived experience of disability and their representative organisations, and will require transparent public reporting and sufficient, ongoing resourcing so that regulatory activity can prevent harms early and support duty-holders to comply.

As noted in the previous section, General Comment 6 interprets inclusive equality as involving four dimensions that (a) redress disadvantage, (b) combat stigma and recognise intersectionality; (c) promote participation, voice and the full recognition of humanity; and (d) accommodate difference. These dimensions can be used to determine ‘whether a law, policy, practice, or institution is likely to fulfil the right to equality and to point to ways in which they should be reformed better to do so’.28 Developing disability equality indicators based on these four dimensions will ensure consistency with the CRPD and that the ‘positive duties are forward-looking, systemic, and seek to impel social transformation toward a system that prevents discrimination occurring and promotes substantive equality’.29

26 Hickey, L., Kosta, L., Davidson, J., Zarine, D., Daniels, E., Soaven, L., Bornemisza, A., Lee, B., & Harms, L. (2025) Inclusion in Communities: Understanding the experiences of people with disability. In preparation for submission to Disabilities.

27 Disability Royal Commission, Final report: Volume 4, pp 314–315.

28 Sandra Fredman, ‘Substantive Equality Revisited’ (Research Paper No. 70/2014, Oxford Legal Studies, 15 October 2014) 714.

29 Beth Gaze and Belinda Smith, Equality and Discrimination Law in Australia: An Introduction (Cambridge University Press, 2016) 266.

Direct responses to Q12—Q15

Q12—Who should it apply to? All DDA duty-holders (public and private), so protection is not fragmented, with proportionality factors calibrating obligations for micro, small, medium and large entities.
Q13—Lessons from the Sex Discrimination Act (‘SDA’) duty: The submission of the Australian Discrimination Law Experts Group to this review sets out some of the lessons from the operation of the positive duty in the SDA that could be incorporated into a positive duty in the DDA.30 Two of those recommendations are specifically endorsed in this submission.

First, the AHRC must have the necessary powers to oversee, monitor compliance with, and, when necessary, enforce the positive duty. Under the SDA, the AHRC cannot inquire into a potential breach of the duty until it ‘reasonably suspects that …[a] person is not complying’ (emphasis added) with the duty.31 However, it lacks the means to inform itself about such non-compliance. This gap should be addressed by requiring duty bearers to submit an annual disability action plan to the AHRC, reporting on compliance with the positive duty. In this plan, duty bearers should be required to report against relevant disability equality indicators, including responses to intersectional discrimination. Additionally, a specific mechanism should be established that permits individuals and representative organisations to report suspected non-compliance with the duty.

Second, in contrast to the SDA, the DDA should impose a positive duty on the AHRC to consult people with lived experience of disability and their representative organisations in any compliance activities. The AHRC should be required to include the voices of people with disability in the development of the disability equality indicators in disability action plans, compliance strategies, such as the development of guidance materials, and also in individual cases of alleged non-compliance, for example, to determine whether ‘proportionate measures’ have been taken by a duty-holder to comply with the duty.
Q15—Exceptions/limits: Avoid blanket carve-outs. Proportionality/practicability and the unjustifiable hardship defence provide necessary guardrails. Consider time-limited transition arrangements for volunteer-run organisations.

30 Australian Discrimination Law Experts Group, Submission in Response to the Commonwealth Attorney-General’s Department Review of the Disability Discrimination Act, 16 October 2025.

31 Australian Human Rights Commission Act 1986 (Cth), s 35B(1).

Response to Part 4 — Improving access to justice

Issues Paper	How could the Disability Discrimination Act be amended to ensure that it covers policing? Are there any specific circumstances or situations relating to policing or justice that should be excluded from the application of the Disability Discrimination Act?
Questions 31 & 32

Recommendation 12:	Make it explicit that the DDA’s ‘services’ provisions apply to policing activities involving suspects and accused persons at all stages, from first contact through investigation, charge, bail and custody, so discriminatory treatment by police is unlawful whether a person is a victim, witness, member of the public, or under police scrutiny.
Policing is service provision

The Issues Paper puts forward a proposition in Recommendation 8.19, as an extension of the current DDA prohibition of discrimination in the provision of services (currently interpreted by the courts as only interactions with witnesses, victims of crime and members of the public), to include ‘a new provision or provisions being inserted into the Disability Discrimination Act to cover policing and the justice system’.32 Examination of experiences of people with disability across the legal system, including their interactions with police, lawyers, courts and tribunals, would suggest a specific provision is long overdue. In the context of police and policing, Victoria has seen the small-scale implementation of diversion programs designed to create wraparound community-based services for young people with disability when they first come into contact with the criminal justice system. By engaging in processes that not only do not discriminate against young people and offenders with disability, but positively and actively work to reduce discrimination against these young people within the community, these programs (including the role of police) have been shown to increase the well-being of participants, change the ways in which police understand disability and improve recidivism amongst participants.33 Expanding the DDA to include policing with offenders will support the extension of such programs and enhance the capacity of police to positively influence communities and outcomes for people with disability.

When considering the justice system, however, it is important that the experiences of people with disability in courts and tribunals are also considered and included in DDA reforms. An essential component of protecting the human rights of people with disability is ensuring that they are able to meet their legal obligations and pursue their legal rights, via courts and court processes that are both accessible and inclusive. In response, there are a range of isolated programs in which people with disability are supported to participate in court processes, including those supporting people with complex communication needs, such as the criminal law Intermediary Programs in Victoria, South Australia and New South Wales34 and the Communication

32 Attorney-General’s Department, Disability Discrimination Act 1992 Review. Attorney-General’s Department, Australian Government, 2025, pp73

33 Vanderdonk, E., Gallant, D., Davidson, J. and Rose, D. (2024) Community-based diversion programs for young people with disabilities: lessons from literature and the Barwon/Colac pilot, Court Services Victoria.

34 South Australian Law Reform Institute. Review of the Use of Communication Partners in South Australia: background information and consultation questions. South Australian Law Reform Institute , March 2021

Facilitator Pilot Program for VCAT Guardianship and Administration matters in Victoria.35 While these programs are promising starts to ensuring people with disability and complex communication needs are able to participate in hearings, an extension of the current DDA provisions to include courts would be a key step in requiring courts to effectively engage with the needs of people with disability and ensuring they are not excluded from essential court processes and the justice system.

In current research being undertaken into the Communication Facilitator Pilot Program (Victoria - VCAT), participants described their anger and frustration in settings where Intermediaries should be available, but where, instead, as witnesses in a criminal matter, participants were removed from the witness list by the court only because the participant needed to use a computer-aided communication device.36 Other participants described past matters where communication support was not offered as part of VCAT hearings, resulting in self-interested service providers or family members speaking on behalf of the person with disability and excluding them from the hearing process. Essential programs, such as the Communication Facilitator Pilot Program and Intermediary Programs, would be supported by an extension of provisions in the DDA to include the courts. Placing a duty on courts to ensure their processes are not discriminatory would bring to light not only which court processes are of issue, but would also support courts and tribunals to limit the capacity of other parties to diminish participation and the human rights of people with disability.

35 Davidson, J. and Lee, B. (2025) Evaluation of the Communication Facilitators in Civil Matters — Pilot Program. Court Services Victoria (in development)

36 ibid

Response to Part 5 — Exemptions

Section 52 (Migration) — Repeal or sharp narrowing

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

Recommendation 13:	Repeal s 52 of the DDA. If immediate repeal is not feasible, narrow it sharply with a built-in sunset and independent oversight.
**DDA should have jurisdiction over the Migration Act 1958**

DDA s 52 currently exempts anything ‘permitted or required’ by the Migration Act 1958 (Cth) and Regulations from the DDA’s core prohibitions. In practice, this extends beyond visa criteria to include administration and procedures. That breadth is not necessary to run a safe, fiscally responsible visa system, and it undermines equal protection for people with disability.37

In Sherlock v Australia, the CRPD Committee found that the Australian migration health criterion (PIC 4006A) contravened CRPD Articles 5 and 18 because it discriminates against people with disability in migration, underscoring the risk of shielding migration decision-making from discrimination review.38 In its 2019 Concluding Observations on Australia, the CRPD Committee (a) criticised migration/asylum law (including the health requirement) as allowing discrimination; (b) flagged the DDA exemption as exclusionary; and (c) recommended removing the exemption and ensuring a non-discriminatory procedure.39

Domestically, the Disability Royal Commission urged the Australian government to review s 52 and related laws authorising disability discrimination in migration40 and the Australian government indicated a willingness to consult.41 The AHRC likewise recommended reviewing s 52 and aligning migration practice with the CRPD, including withdrawing Australia’s interpretive declaration to Article 18.42 These recent developments align with longstanding reform recommendations in the Productivity Commission’s Review of the DDA (2004)

37 Productivity Commission, Review of the Disability Discrimination Act 1992 (Report No 30, 30 April 2004); Joint Standing Committee on Migration, Parliament of Australia, Enabling Australia: Inquiry into the Migration Treatment of Disability (Report, 21 June 2010).

38 Gráinne Sherlock v Australia (Committee on the Rights of Persons with Disabilities, Communication No 20/2014, UN Doc CRPD/C/24/D/20/2014, Views, 19 March 2021).

39 Committee on the Rights of Persons with Disabilities, Concluding observations on the combined second and third periodic reports of Australia, UN Doc CRPD/C/AUS/CO/2-3 (15 October 2019) [35–6].

40 Disability Royal Commission, Final report: Volume 4, Recommendation 4.31.

41 Disability Royal Commission, Final report: Volume 4, p339.

42 Australian Human Rights Commission, Submission to the Review of the Migration Health Requirement and Australia’s Visa Significant Cost Threshold (Submission, 24 November 2023) Recommendation 5.

and the Joint Standing Committee on Migration’s Enabling Australia: Inquiry into the Migration Treatment of Disability (2010).43

The numerous reports on this issue demonstrate that the practical reality does not justify a blanket carve-out under s 52.44 The most contentious aspect of this exemption lies in the design and administration of the Migration Health Requirement and the Significant Cost Threshold.45 After the Disability Royal Commission findings, the Department of Home Affairs’ report Migration Health Requirement and Australia’s visa Significant Cost Threshold (2024) set out a plan to improve fairness in the migration system for people with disability and their family members. The report recommended redefining and annualising the Significant Cost Threshold, updating indexation, excluding special education from costings, improving transparency of the methodology, correcting assessment-period mismatches, and adopting targeted fairness measures.46 However, the adoption and retention of these measures rely on parliamentary whims and government department self-regulation rather than the more robust protection afforded by the codification of equity standards in anti-discrimination law.

Public health objectives (e.g., TB control) and budget stewardship can be met through proportionate rules, adjustments, and transparent cost methods rather than by immunising the migration regime from the DDA.47

Reform options

A. Repeal (preferred). Subject migration decision-making and other functions under the Migration Act and Regulations to the same DDA standards as other public functions; pursue legitimate aims through proportionate criteria and adjustment.

B. Narrow + oversight. If Parliament retains the exclusion clause for the Migration Act and Regulations, confine it tightly: exclude administrative and procedural aspects (including communication and decision-making supports), family-unity/humanitarian visas, and review/appeal functions; require consideration of less-discriminatory alternatives; and add a five-year sunset, independent review and public reporting. Align the clause expressly with CRPD Articles 5 and 12.

43 Productivity Commission, Review of the Disability Discrimination Act 1992 (Report No 30, 30 April 2004); Joint Standing Committee on Migration, Parliament of Australia, Enabling Australia: Inquiry into the Migration Treatment of Disability (Report, 21 June 2010).

44 Advocacy coalition Welcoming Disability highlight that decision-makers are bound to accept the MOC opinion (reg 2.25A(3)) and where waivers are available, around 96% of applicants who seek them ultimately succeed, indicating that proportionate, individualised assessment works better than categorical exclusion. Welcoming Disability, Position Statement on Migration and Disability (Policy Paper, August 2025).

45 See for example Australian Human Rights Commission, Submission to the Review of the Migration Health Requirement and Australia’s Visa Significant Cost Threshold (Submission, 24 November 2023)

46 Department of Home Affairs (Cth), Review into the Migration Health Requirement and Australia’s Visa Significant Cost Threshold (Report, April 2024).

47 Australian Human Rights Commission, Submission to the Review of the Migration Health Requirement and Australia’s Visa Significant Cost Threshold (Submission, 24 November 2023); Department of Home Affairs (Cth), Review into the Migration Health Requirement and Australia’s Visa Significant Cost Threshold (Report, April 2024).

Response to Part 7 — Further options for reform

Preventing discrimination in legal decision-making

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

Recommendation 14:	Add an express provision to the DDA making it unlawful to discriminatorily deny, restrict or condition a person’s legal capacity on the basis of disability, and confirm that decision-making support and communication support are forms of adjustments.
Non-discrimination in legal decision-making

Article 12 of the CRPD reaffirms people with disability’s right to be recognised everywhere as persons before the law, their right to enjoy legal capacity on an equal basis with others, requires States Parties to take appropriate measures to provide access by people with disability to the support they may require in exercising their legal capacity and requires States Parties to ensure appropriate and effective safeguards within all measures related to the exercise of legal capacity. The CRPD Committee has clarified the meaning of ‘legal capacity’ in their General comment No. 1 (2014) Article 12: Equal recognition before the law (‘General Comment 1’), when they state that legal capacity

consists of two strands. The first is legal standing to hold rights and to be recognized as a legal person before the law. The second is legal agency to act on those rights and to have those actions recognized by the law.48

The second strand refers to legal decision-making, and it is this strand that has been most often denied to people with disability.49 Interpreted thus, the right to legal capacity requires widescale reform of laws which routinely limit and deny people with disability’s right to legal capacity and their right to make decisions in their own lives.

Article 12 is a critical part of wider disability advocacy efforts which aim to end institutionalisation and forced treatment, to restore people with disability’s autonomy and ability to make their own choices and decisions about their lives and to prevent the loss of fundamental citizenship rights for people with disability, such as the ability to own property, marry and vote. It is also part of broader efforts to reconceptualise legal personhood and to include people with disability as those who can be, and act, as a legal person under the law. Article 12 underpins many of the other human rights enshrined within the CRPD, for example, rights to reproductive freedom set out in Article 23, the right to access justice set out in Article 13, the right to live

48 Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal Recognition before the Law, UN Doc CRPD/C/GC/1 (19 May 2014).

49 Arstein-Kerslake, Anna, and Eilionóir Flynn. ‘The General Comment on Article 12 of the Convention on the Rights of Persons with Disabilities: A roadmap for equality before the law.’ The International Journal of Human Rights 20.4 (2016): 471–490.

independently set out in Article 19 and the right to participate in political and public life set out in Article 29. These rights would not be fully realised without people with disability being recognised as legal persons and being able to make legal decisions and having those decisions respected.

Article 12 is also intertwined with Article 5, with the CRPD Committee linking Article 12 to the principle of non-discrimination and stating that ‘[t]o achieve equal recognition before the law, legal capacity must not be denied discriminatorily … the right to equal recognition before the law and freedom from discrimination requires that when the State denies legal capacity, it must be on the same basis for all persons’.50 Non-discrimination in the context of legal capacity, therefore, requires that legal capacity not be denied in a discriminatory manner, and it includes the right to receive support to exercise one’s legal capacity, which the CRPD Committee refers to as a reasonable accommodation as defined in Article 2.

In General Comment 6, the CRPD Committee also stated that:

Articles 5 and 12 are fundamentally connected, because equality before the law must include the enjoyment of legal capacity by all persons with disabilities on an equal basis with others. Discrimination through denial of legal capacity may be present in different ways, including status-based, functional and outcome-based systems. Denial of decision-making on the basis of disability through any of these systems is discriminatory.51

The CRPD Committee goes on to say that to ensure consistency between Articles 5 and 12, States parties must reform existing legislation to prohibit discriminatory denial of legal capacity. In its guide for developing comprehensive anti-discrimination legislation, the United Nations & Equal Rights Trust (2023) have also highlighted the link between Article 5 and Article 12 when discussing the international human rights law framework regulating anti-discrimination law, stating the right to equal legal capacity is an ‘inherent component’ of States’ obligations relating to equality before the law.52

Due to the fundamental place of Article 12 in the CRPD and its inherent link to non-discrimination and the right to be equally benefitted and protected by the law, an express provision should be added to the DDA that makes it unlawful to deny, restrict, or condition a person’s legal capacity because of disability. Such a provision should also treat decision-making support and communication support as (necessary) adjustments. This addition would give domestic effect to Article 12 of the CRPD and to General Comment 1, which require recognition of legal capacity on an equal basis and access to the support needed to exercise it.53

50 Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal Recognition before the Law, UN Doc CRPD/C/GC/1 (19 May 2014), 8.

51 Committee on the Rights of Persons with Disabilities, General comment No. 6 (2018) on equality and non-discrimination. UN Doc CRPD/C/CG/6 (2018, April 26).

52 United Nations for Human Rights Office of the High Commissioner & Equal Rights Trust. (2023). Protecting Minority Rights: A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation. United Nations. https://doi.org/10.18356/9789210013901

53 Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal Recognition before the Law, UN Doc CRPD/C/GC/1 (19 May 2014).

Why this belongs in the DDA (and how it helps)

It implements Article 12 of the CRPD domestically: equal legal capacity, with support to exercise it. The CRPD Committee’s General Comment 1 treats denial of legal capacity and failure to provide support as discriminatory.54
It closes a current gap within the DDA: the DDA prohibits discrimination in services, employment, education, and other areas, but it does not directly address the denial of legal capacity (e.g., banks refusing to accept instructions, clinicians disregarding consent, and agencies insisting on substitute decision-makers).
It centres cognitive and psychosocial disability: people with psychosocial disability and cognitive disability are disproportionately excluded via capacity presumptions and risk-averse policies. Making decision-making support an express adjustment addresses this, without imposing a diagnosis gate.
It supports a shift in community attitudes: A key outcome area in Australia’s Disability Strategy 2021-2031 is to build positive community attitudes toward people with disability, highlighting the stigma, unconscious bias, and lack of understanding of disability that occur in the community.55 The inclusion of a legal capacity clause in the DDA will help increase community understanding of people with disability’s right to agency and autonomy over their own lives, and how this can be realised outside more traditional legal capacity legislation (such as guardianship laws).
It aligns with recent Australian legal reform work: the Australian Law Reform Commission’s Report 124 set out National Decision-Making Principles (equal right to decide; support; safeguards as a last resort),56 and the Disability Royal Commission called for supported decision-making across systems. This provision operationalises those principles within discrimination law.57

Comparative snapshots (how others cover this)

Ontario Human Rights Commission, Policy on Discrimination and Language:

Contracts

Section 3: Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.58

54 Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal Recognition before the Law, UN Doc CRPD/C/GC/1 (19 May 2014).

55 Commonwealth of Australia (Department of Social Services). (2024). Australia’s Disability Strategy 2021-2031—2024 Update: Building a more inclusive Australia.

56 Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124, 2014) https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-alrc-report-124/ archived/online, accessed 12 September 2025. See especially Recommendation 3-4.

57 See especially, Disability Royal Commission, Final report: Volume 6, Enabling Autonomy and Access, Chapter 2.

58 Ontario Human Rights Commission, Policy on Discrimination and Language (Policy, approved 19 June 1996, revised December 2009) https://www.ohrc.on.ca/sites/default/files/attachments/Policy_on_discrimination_and_language.pdf (emphasis added).

Québec, Charter of Human Rights and Freedoms s.12: prohibits refusing to make a juridical act (e.g., a contract) through discrimination—again, a rights instrument connecting legal acts and anti-discrimination.

No one may, through discrimination, refuse to make a juridical act concerning goods or services ordinarily offered to the public.59
Substantive disability statutes recognising legal capacity (not anti-discrimination codes):
- India — Rights of Persons with Disabilities Act 2016, section 13 (‘Legal capacity’). Government must ensure persons with disability have the right ‘to own or inherit property … control their financial affairs … access to bank loans … on an equal basis.’60
- Peru — Legislative Decree No 1384 (2018). The decree ‘reconoce y regula la capacidad jurídica de las personas con discapacidad en igualdad de condiciones.’ (official heading and text). Government notice confirms it ‘reconoce plena capacidad jurídica … y elimina la interdicción.’ (recognises full legal capacity and abolishes interdiction/guardianship).61
- Indonesia — Article 28 of the Law of the Republic of Indonesia Number 8 of 2016 on Persons with Disabilities Article 28 states that ‘The Government and the Local Governments are obligated to guarantee and protect the rights of Persons with Disabilities as legal subjects to take similar legal action as others.’62
- Colombia — Law 1996 of 2019. Article 6 establishes a presumption of capacity: ‘tienen capacidad legal en igualdad de condiciones … En ningún caso … la existencia de una discapacidad podrá ser motivo para la restricción.’ (‘They have legal capacity on an equal basis [with others] … In no case shall the existence of a disability be grounds for restriction.’) 63
- Nicaragua — Article 24 of the Law on the Rights of Persons with Disabilities of 2011. This Article establishes that ‘the full legal capacity of persons with disabilities’ is recognised. Article 24 recognises people with disability’s ‘right to sign contracts, to represent themselves, to own

59 Charter of Human Rights and Freedoms, CQLR c C-12 (Que) https://www.legisquebec.gouv.qc.ca/en/document/cs/c-12 accessed 12 September 2025.

60 Rights of Persons with Disabilities Act 2016 (India) No 49 of 2016 https://www.indiacode.nic.in/bitstream/123456789/15939/1/the_rights_of_persons_with_disabilities_act%2C_2016.pdf accessed 12 September 2025.

61 Decreto Legislativo No 1384, Decreto Legislativo que reconoce y regula la capacidad jurídica de las personas con discapacidad en igualdad de condiciones [Legislative Decree No 1384, Decree that recognises and regulates the legal capacity of persons with disabilities on an equal basis] (Peru) 2018 https://www.leyes.congreso.gob.pe/Documentos/2016_2021/Decretos/Legislativos/2018/01384.pdf accessed 12 September 2025.

62 Undang-Undang Republik Indonesia, Nomor 8 Tahun 2016, Tentang Penyandang Disabilitas (The Law of the Republic of Indonesia Number 8 of 2016 on Persons with Disabilities) (2016). https://social.desa.un.org/sites/default/files/migrated/15/2019/11/Indonesia_Law-on-Disabilities-No.-8-2016.pdf

63 Ley 1996 de 2019, Por medio de la cual se establece el régimen para el ejercicio de la capacidad legal de las personas con discapacidad mayores de edad [Law 1996 of 2019, Establishing the regime for the exercise of legal capacity of adults with disabilities] (Colombia) 2019 https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=99712 accessed 12 September 2025.

and inherit property, to control their own financial affairs, to take out loans and to use their assets as collateral’.64

- **Costa Rica** — *Law 9379 of 2016* (Law for the Promotion of the Autonomy of Persons with Disabilities). Law 9379 recognises the legal capacity of people with disability, abolishes guardianship and creates a figure of guarantor for the legal equality of people with disability (Constantino Caycho & Bregaglio Lazarte, 2023).65 This law also introduces the concept of personal assistance to enable people with disability to exercise their right to personal autonomy on equal terms with others. This has led to the Programme for the Promotion of Personal Autonomy of Persons with Disabilities.66

How it would work in practice (examples)

Banking & finance: A bank cannot refuse to open an account or accept instructions because of psychosocial or intellectual disability; it must consider supports (e.g., a supporter present, plain-language documents).
Health & consent: A hospital must provide communication and decision-support (interpreters, extra time, easy-read materials) so a person can give or refuse consent; blanket policies that ‘patients with X diagnosis need a substitute decision-maker would be unlawful.
Public administration & justice: Agencies, tribunals and courts must make adjustments so people can instruct, testify, and settle—they must not presume incapacity.

Minimal complementary tweaks to the DDA

Objects clause / Interpretation: add a sentence that the Act is to be read consistently with CRPD Article 12 and that denial of adjustments is discrimination (mirroring the CRPD definition).67
Adjustments definition: insert decision-making support/effective communication as named examples.

64 Act on the Rights of Persons with Disabilities Act (No. 763), La Gaceta (Official Gazette of Nicaragua), Managua (2011). https://www.un.org/development/desa/disabilities/wp-content/uploads/sites/15/2019/11/Nicaragua_Law-on-the-Rights-of-Persons-with-Disabilities-Law-No.-763.pdf

65 Constantino Caycho, R. A., & Bregaglio Lazarte, R. A. (2023). A Four-Speed Reform: A Typology for Legal Capacity Reforms in Latin American Countries. Laws, 12(3), 45. https://doi.org/10.3390/laws12030045; Ley Para La Promocion De La Autonomia Personal De Las Personas Con Discapacidad, Ley N.o 9379 (2016). https://www.un.org/development/desa/disabilities/wp-content/uploads/sites/15/2019/11/Costa-Rica_Law-No-9379-on-the-Promotion-of-Personal-Autonomy-of-Persons-with-Disabilities-2016.pdf

66 Ley Para La Promocione De La Autonomia Personal De Las Personas Con Discapacidad, Ley n.o 9379 (2016). https://www.un.org/development/desa/disabilities/wp-content/uploads/sites/15/2019/11/Costa-Rica_Law-No-9379-on-the-Promotion-of-Personal-Autonomy-of-Persons-with-Disabilities-2016.pdf; Yaksic, N. (2021). Legal capacity for people with disabilities in Latin America: Legislative and jurisprudential advances. Eurosocial. https://eurosocial.eu/en/bitacora/la-capacidad-juridica-para-las-personas-con-discapacidad-en-america-latina-avances-legislativos-y-jurisprudenciales/

67 The CRPD uses the term ‘reasonable accommodation’ (art 2), whereas the DDA uses ‘adjustments’. As highlighted earlier in this submission, the qualifier ‘reasonable’ has not been effective in facilitating substantive equality under the DDA.

Guidance/Code of Practice: publish practical examples for banks, health services, lawyers, courts/tribunals.

Why now

There is significant momentum within Australia and internationally for reforming law to align with Article 12 of the CRPD and to better recognise the human rights of persons with disability. This momentum comes from strong community advocacy and sentiment, and legal reform that has already occurred.68 This momentum signifies an inflection point in disability law, making now the perfect time to make bold and transformative changes related to people with disability’s legal standing and legal agency. It is critical to interpret the CRPD holistically, understanding that each of its articles connects, underpins and links with the other articles present in the Convention. The inclusion of a legal capacity clause within discrimination law would reflect this interconnection between human rights and the ways in which they can mutually reinforce each other, creating a human rights synthesis within and across domestic law.

The DDA review also specifically contemplates aligning with human rights model understandings and modernising concepts like reasonable adjustments and the inclusion of a legal capacity clause in discrimination law as an effective way to do so. A legal capacity clause is the logical, high-impact addition that implements Article 12 within discrimination law, complements separate capacity law reforms occurring across a broad range of legislation, including guardianship and mental health law, and squarely addresses the lived experience of people with disability. The inclusion of a legal capacity clause within discrimination law would be highly innovative, increase respect for the autonomy and dignity of persons with disability and make Australia a global leader in non-discrimination related to legal personhood, legal capacity and legal agency.

68 Alston, B. (2017). ‘Towards supported decision-making: Article 12 of the convention on the rights of persons with disabilities and guardianship law reform’. Law in Context. A Socio-Legal Journal, 35(2), 21–43. https://doi.org/10.26826/law-in-context.v35i2.10

Legislative alignment to enable DDA implementation

Meaningful implementation of DDA reform will require targeted review and, where necessary, amendment of other Commonwealth laws and policies that interact with disability rights so that the DDA’s protections are not undermined in practice. Past inquiries and reports have reached the same conclusion: the Productivity Commission’s review of federal discrimination arrangements, the Australian Law Reform Commission’s Report 124 (Equality, Capacity and Disability in Commonwealth Laws), and other parliamentary and international reviews have each emphasised that statutory and policy settings beyond the DDA (for example in migration, social security and health law) can create legal barriers to equality unless aligned with anti-discrimination objectives. The Hub therefore recommends that the Government establish a targeted program of legislative and administrative reviews in close consultation with people with disability and their representative organisations (with priorities set by likely impact on disability equality) to remove legal and policy barriers and ensure that DDA reforms are practical, enforceable and effective in everyday decision-making and service delivery.

The University of Melbourne

unimelb.edu.au