NDIA Accountability Project

Submission to the Australian Government Attorney General’s Department Disability Discrimination Act 1992 Review

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Submission to the Australian Government
Attorney General’s Department

Disability Discrimination Act 1992 Review

14 November 2025

Contents

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current employers and prospective or current employees before making employment decisions? …………………………………………………………………………………………………………………………………………….15

  1. How could the Disability Discrimination Act be amended to ensure that it covers policing? ..16

  2. How could the protections for assistance animals be clarified for both people with disability and duty holders, including in relation to evidence of training, evidence, or standards of hygiene and behaviour that are appropriate for a public place? …………………………………………………..16

  3. Would legislative amendments or guidance materials be helpful to balance flexibility and certainty, or a mixture of both? …………………………………………………………………………………………………………17

  4. Should specific training organisations be prescribed under the Disability Discrimination Regulations? ………………………………………………………………………………………………………………………………………..17

  5. Should there be minimum requirements for action plans (such as through guidelines), and what should the minimum requirements cover? ……………………………………………………………………………..17

  6. Should the Australian Human Rights Commission be able to reject action plans that fail to meet these requirements? …………………………………………………………………………………………………………………18

  7. Should there be a set period for which an action plan is valid? ………………………………………………18

  8. How could compliance with, and enforcement of, the Disability Standards be improved? ….18

  9. Should the Disability Discrimination Act be amended to encourage relevant duty holders to self-report on their compliance with the Disability Standard(s) in disability action plans? …………..19

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

Additional Comments………………………………………………………………………………………………………………………… 19

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Contributors, Terminology, and Our Organisation

Deafness Forum Australia is grateful to the following organisations and individuals for contributing insights and expertise across the development of this submission.

redacted

Terminology

We acknowledge that each person’s experience of disability is unique and that different people will have a way of talking about disability or themselves that they like best.

Some people prefer to use identity-first language, while some prefer to use person-first language. We are also aware that there are different and equally valid ways that people describe their hearing loss and the importance of acknowledging an individual’s right to choose how they describe their personal experience of disability.

In this submission, we usually use the term ‘person with hearing loss’ but may use other terms including ‘hard of hearing’ or ‘hearing impaired’ depending on an individual’s preferences.

When referring to people with lived experience of deafness, we capitalise ‘Deaf’ as an identity-first language to acknowledge the Deaf community as a unique and culturally diverse population group within Australia with many distinctive characteristics including language, cultural norms, and shared experiences.

Deafness Forum Australia

Deafness Forum Australia (DFA) is recognised by the Australian Government as the national representative peak body for the 3.6 million Australians who live with hearing loss, have ear or balance disorders, people who also communicate using Australian Sign Language, and their families and supporters.

DFA’s mission is to make hearing health and wellbeing a national priority in Australia and address the societal barriers that inhibit the equitable inclusion of people with hearing loss as citizens and community members.

We draw our authority from what our members and other stakeholders tell us, Australia’s Disability Strategy, National Preventive Health Strategy, Roadmap for Hearing Health and Wellbeing, National Agreement on Closing the Gap, and United Nations Convention on the Rights of Persons with Disabilities.

DFA collaborates with a broad range of specialist organisations, including early intervention agencies, representative organisations for cohorts within the deafness and hearing loss communities, and people with direct experience of deafness or hearing loss and their families. We have strong connections with primary research institutions and are involved in various systemic advocacy and health initiatives.

DFA represents Australia as a Foundation Member of the World Hearing Forum (part of WHO), as a member of the International Federation of Hard of Hearing People, and as an associate member of the World Federation of the Deaf.

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Contact

redacted
National Director, Policy and Advocacy
E: redacted
P: redacted

In the spirit of reconciliation, we acknowledge the Traditional Custodians of Country throughout Australia and their connections to land, sea, and community.

We pay our respects to their Elders, past and present, and extend that respect to all Aboriginal and Torres Strait Islander peoples today.

We recognise the unacceptably high rates of ear and hearing conditions that continue to impact First Nations communities, particularly their children, at rates far greater than the general population.

We honour the leadership and resilience of Aboriginal and Torres Strait Islander communities in addressing these challenges and their unwavering commitment to improving the hearing health of future generations.

Deafness Forum Australia commits to listening, learning, and working in genuine partnership to support community-led solutions that are culturally safe and driven by the wisdom of First Nations peoples.

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Introduction

Deafness Forum Australia is the national systemic advocacy peak body for the 3.6 million Australians living with deafness, hearing loss, and other auditory disorders. Our mission is to champion the inherent rights of all individuals with hearing-related disabilities, advocating for full inclusion and equity across society in line with human rights principles.

We welcome the opportunity to contribute to the review of the Disability Discrimination Act (the DDA). Since 1992, the Act has been a critical tool for Australians with disability to realise equity and inclusion across public life, codifying Australia’s commitment under the United Nations Convention on the Rights of People with Disability (the UNCRPD) into domestic law and achieving positive change, both for people living with disability and society more broadly.

Legislation is always reflective of a particular point in a society’s history, requiring ongoing review and refinement to stay in keeping with contemporary societal norms and expectations.

This review provides a landmark opportunity to strengthen the DDA as a primary mechanism to realise greater access and inclusion for all Australians with disability and their families.

While we acknowledge the key role the DDA has played to date in promoting greater disability inclusion across public life, we agree that substantial reforms are overdue to align the Act with contemporary understandings of the social/rights-based model of disability and achieve its full intention.

In addition to supporting a higher overall quality of life for people with disabilities, research indicates that societies that promote equity and inclusion benefit from reduced demand on welfare and health systems, increased labour force participation, and increased economic activity.

In our research for this submission, Deafness Forum Australia has consulted broadly with people living with hearing loss, their families, and advocacy bodies across Australia, both to understand the specific barriers to equity and inclusion that those who are D/deaf or have hearing loss experience under the present DDA, and to propose ways to enhance the effectiveness of the Act which are informed directly by lived experience insights.

Given the breadth of the review, we will only focus on the areas where we are best positioned to provide useful feedback, that is, the enforceability of the Act from a user perspective.

Experiences of people with hearing loss under the current DDA

In our experience, although there is a general awareness in society that people with disability have legal protections against discrimination, there is often a large gap between the theoretical concept of equity and its practical realisation for people with hearing loss.

While the hearing loss community has seen significant advances in social inclusion and equity over recent decades, experiences of discrimination remain unacceptably high, and progress towards achieving mainstream inclusion for people with hearing loss remains frustratingly slow.

People with hearing loss must consistently navigate across various levels of access and inclusion as they go about their daily public lives, which is often an exhausting and frustrating experience. At the same time, the burden of communication accessibility continues to fall predominantly on the individual to compensate for the lack of inclusive communications.

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I’m told I must wear a hearing aid because I live in a hearing world! I love my deafness; the hearing world is too full of noise! I lip-read and sign, and I do speak, but there are some [people] who don’t like me using Auslan.

DFA Member

Inequality is perpetuated in part by public misconceptions about hearing loss, which remain pervasive, even within government disability support agencies. These misconceptions include the assumption that hearing aids or cochlear implants ‘fix’ hearing loss, that a person with hearing aids will not require alternative communication supports, such as Auslan or captioning, or that people with hearing loss can have their communication needs met through written communication.

**We’ve had [a National Disability Insurance Agency staffer] say,

redacted DFA Board Member

Many workplaces don’t make accommodations for Deaf people. There’s no assistive technology in meetings or on phones suitable for use with hearing aids. [I’m] ignored when I speak up for myself. [Staff don’t] communicate correctly with me after I have told them how to and explained my limitations to them.

DFA Member

In the workplace, I often have to self-advocate to secure the most basic forms of accessibility. This includes asking colleagues to switch on captioning for meetings and presentations, upskilling IT departments on accessibility in LMS or explaining repeatedly why inclusive communication practices are not optional but required under the DDA and Disability Standards for Education.

While I do this to improve outcomes for others as well as myself, it takes a toll: constantly having to justify my right to inclusion undermines dignity and drains energy. It is exhausting.

redacted DFA Chairperson

With the increasing use of automation and AI, care needs to be taken with the algorithm coding. Often, they are based on Ableist assumptions, e.g., the assumption that everyone can use the phone, or utilise face-to-face services without assistance, or voice recognition technologies. Once implemented, they are inflexibly assumed to be fair and to treat everyone equally.

DFA Member

[The lack of universal] Captions for TV programmes and movie theatres. In my naivety, I don’t understand why outlets can’t use the same technology YouTube uses for auto-generated captioning.

DFA Member

Medical people like GPs and the people who work there don’t offer clear communication options (facing their computer and talking, masks behind glass partitions, and then yelling to try and communicate, which doesn’t help). I’ve explained I’m deaf and need to lipread.

DFA Member

There’s no support in a hospital setting. Some doctors are very difficult to lipread, creating a huge communication breakdown. There’s a lack of appropriate mental health support

DFA Member

Use of the DDA as an enforcement mechanism

Our members overwhelmingly report dissatisfaction with the current system of lodging complaints with the Australian Human Rights Commission or alternative state-based authorities, describing these processes as ‘having no teeth’.

The existing framework feels reactive and complaint-driven. It leaves people like me having to self-advocate at every step, which is exhausting. Human rights protections should not depend on whether an individual has the stamina, health, or financial means to fight discrimination through complaints. They should instead be proactive, preventive, and enforceable.

redacted DFA Chairperson

Establishing the grounds for a complaint to the Australian Human Rights Commission is a multi-step process that falls directly on the person seeking to make the complaint. The following real-life example shows the various elements that a person needs to satisfy to establish the basis for a potential cause of action:

Case Study 1:

redacted has significant hearing loss and uses a cochlear implant. He communicates through a variety of means, including live captioning. redacted attended a face-to-face consultation session for his local council. The council fails to make inquiries about any communications accessibility needs for participants before the session and therefore does not arrange live captioning. redacted is forced to explain that the session is not accessible and that he’s previously provided details of his accessibility requirements. Despite this, no efforts are made to address his needs. redacted who has invested in attending the session already, is forced to rely on the voice-to-text function on his phone to participate and is unable to fully follow spoken content across the session.

Process for redacted to establish a cause of action:

redacted has a disability → Hearing loss qualifies under s.4
He attempts to access a service → In-person Council session
A barrier prevented him from equal access → No live captioning
A reasonable adjustment was not provided → Live captioning is widely available, low-cost, and routinely used by other councils
The adjustment was realistic, feasible, and low burden → No unjustifiable hardship argument applies
The organisation had prior knowledge → redacted had previously raised the issue

The evidence requirements above are often difficult for complainants to establish in the first instance; for example, a potential complainant will seldom know whether an adjustment is realistic, feasible, or low burden, as this will depend on the resources and capacity of the entity that has failed to meet their disability-related needs.

After a complaint has been established, the conciliation process is similarly seen as time-consuming and labour-intensive. Complainants often feel substantially disadvantaged, particularly if they are self-represented and then expected to conciliate directly with senior business representatives such as legal counsel.

Companies and businesses usually have more time and resources to invest across the conciliation process, whereas the investment for the complainant, who must balance their participation in the process with work and family commitments, while already experiencing the challenges that come from living with sensory disability, is often substantially higher.

Completely unfair, stressful, and onerous for anyone with a disability. It can take up to two years to get to the [administrative appeals] tribunal. It’s easier not to bother.

DFA Lived Experience Advisory Group Member

If the complaint can’t be resolved through conciliation, the prospect of taking the matter to the federal court is even more daunting. Many complainants do not have the resources to invest in legal representation in the first instance, and the costs of filing an application and the risk of a costs order are also factors that discourage complainants from asserting their rights.

Those who lodge complaints often do this to try to push the respondent to adopt more inclusive practices moving forward. Many are dissatisfied when the matter is resolved on an individual basis through conciliation, where the details of the matter are confidential, knowing that there is nothing to stop the respondent from further discrimination in the future. Many are also compelled to sign non-disclosure agreements as part of the terms of settlement.

If [the respondents] do agree to conciliation, you have to sign a confidentiality clause, which means a conviction is not recorded, and you can’t disclose who they are or what they paid you. The respondents don’t get a fine; they pay compensation if you’re lucky, but there’s no record of them breaking the law.

DFA Lived Experience Advisory Group Member

The combination of these factors means that many people with hearing loss don’t see any point in engaging with the complaint process. Many resign themselves to the fact that discrimination is a part of their daily life, navigating society as best they can through positive steps that are within their control, such as investing in assistive technologies or ‘shopping around’ for the most accessible options.

While some may directly challenge discriminatory business practices; seeing this as something that they hope will lead to changes that will advantage people with hearing loss in the future, many feel too uncomfortable to do this, particularly if their hearing loss or Deafness is not readily apparent. Others speak to the frustration they feel about being expected to consistently educate society on their basic communication needs.

From a policy perspective, the fact that there are so many barriers for people to access their rights under the DDA is highly problematic. We have no real way of gauging how Australia is tracking in terms of meeting its obligations under the Convention on the Rights of Persons with Disabilities, or Australia’s Disability Strategy, or how discrimination is experienced by people with disabilities across different areas of public life.

While the Australian Bureau of Statistics (the ABS) and the Australian Institute of Health and Welfare (the AIHW) produce data on Australians with disability, which includes limited data on experiences of discrimination, we believe this data is a significant underrepresentation of the prevalence of disability discrimination within the Australian context.

The present framework facilitates non-compliance. Businesses and companies have little to fear from non-compliance, since the odds that a person with disability will formally pursue any

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type of enforcement action are extremely low. Companies and businesses can exhibit blatant discrimination – for example, refusing to provide transport for someone with disability, leaving them stranded, or blatantly ignoring a person with communication needs, because there is limited reputation risk in doing so.

We expect, from a cost-benefit perspective, companies and businesses are discriminatory to those with disability, because it makes sense; the resources and effort to achieve compliance with the DDA under the current setup will almost undoubtedly far outweigh the rare cost of a complaint, It is easier to simply pay out when needed and carry on.

Ideally, we need the Act to operate to both prevent and remedy discrimination, and the DDA in its current state, underperforms in meeting both these aims. The DDA should serve as a powerful and trusted mechanism to foster a culture of prevention and drive continuous progress toward equity and inclusion.

Responses to consultation questions

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

The definition of disability sets the tone of the legislation and is important in establishing who can access statutory protection under the Act, particularly as our understanding of disability as a society continues to evolve.

As a critical tool for Australians with disability to realise equity and inclusion across public life, the DDA should drive positive change and challenge negative assumptions, while ensuring any definition can be both clearly understood and practically applied.

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

Balance should lie in creating a workable definition, developed in co-design with people with disability, that:

  • Aligns with the rights-based model of disability.
  • Uses the best language available to promote a positive view of disability, while ensuring the definition can be readily applied and understood, both by those with disability and across broader society.
  • Avoids deficit-focused framing; removes archaic terms such as ‘malfunction’, ‘malformation’, and ‘disfigurement’
  • Is sufficiently broad to ensure that no one is inadvertently excluded.
  • Aligns with the CRPD while also ideally being consistent across all jurisdictions.

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

There would be a significant benefit in amending the Act to expressly allow combined discrimination claims based on multiple or combined protected attributes.

We note that the Australian Human Rights Commission can and does consider discrimination due to multiple attributes, and applicants do not have to choose a singular attribute as the reason for the discrimination, but that this is difficult at the Federal Court level.

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A person may have a variety of intersecting personal attributes that impact whether they experience discrimination, and it can be exceedingly difficult for people to work with a framework that separates an experience of discrimination into discrete and isolated causes of action.

If an individual has initiated a complaint through the AHRC claiming that their rights have been infringed under several protected attributes, it makes sense that they should be able to pursue their complaint as a single application to the Federal Court.

This would save court time and resources across complex matters where a specific cause of action may be difficult to determine, reduce hearing lists, reduce filing fees and representation costs while facilitate a more comprehensive review of the circumstances surrounding the alleged discrimination.

5. What test should be used to ensure that the definition of direct discrimination is easy to understand and implement for both duty holders and people with disability, and why?

We agree that the current two-step process for establishing direct discrimination presents an unreasonable bar for a complainant, both in terms of the comparator test and in establishing causation.

A complainant seldom has access to the full scope of information that led to the alleged discrimination and can struggle to establish that a person without their disability would be treated differently in the same situation.

A detriment test should be sufficient to establish a cause of action. Shifting the focus to the unfavourable treatment or detriment that the person with disability has faced is something the applicant can readily speak to, as it relates to their personal experience.

We support the UK model as a fairer approach. It is reasonable to expect the person with disability to bear the initial burden of proof to establish a primary case on the balance of probabilities that they have been discriminated against, after which the onus should shift to the respondent to prove that their conduct was not because of the person’s disability.

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

We agree that the current structure places too much weight on the complainant to meet the burden of proof, and that this is problematic, since complainants don’t have access to the full scope of information that led to the alleged discrimination. Complainants are also at a disadvantage as they often lack the skills and expertise necessary to compile a comprehensive case without advocacy support.

Having said this, as the initiating party, it is important that complainants can provide enough evidence on the balance of probability to establish that there are sufficient grounds to commence a formal case.

This is why we are in favour of the UK approach. We think this is a good compromise which functions to provide sufficient evidence to establish a primary case in the first instance but then transfers the onus on the respondent to answer the claim that has been made against them.

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

Supporting people with disability and duty holders to understand the definition of indirect discrimination can be achieved in a variety of ways. The ARHC already provides a broad range of online resources that are available for public use to support public understanding of the various anti-discrimination laws.

Providing a non-exhaustive range of factors as a test for establishing whether an action would meet the definition of indirect discrimination, either in the body of the Act or as part of a Schedule, would also be helpful.

8. Should the reasonableness element in the definition of indirect discrimination be: a. removed b. retained and supplemented with a list of factors to consider c. replaced by a legitimate and proportionate test d. other. Please expand on your response.

The unjustifiable hardship element already provides the capacity for the respondent to provide a defence to a claim of discrimination. We support the removal of the reasonable element altogether in line with the recommendations of the Disability Royal Commission.

In the alternative, we would support Option C – the legitimate and proportionate test. Adding the requirement to assess whether the aims are sufficiently serious in balance against the complainant’s rights increases the threshold that respondents must establish to justify their actions.

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

We support this proposal. Australia should be bound by all international treaty obligations. We agree that the inclusion of the Disabilities Convention would have both symbolic and substantive impact for people with disability by clarifying and strengthening the link between the Disabilities Convention and the Disability Discrimination Act.

Having a specific reference to the Disabilities Convention would make it explicitly clear to the Courts that the DDA is expected to be interpreted consistently with Australia’s obligations under the Disabilities Convention.

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

See our response to question 10.

Having the DDA interpreted in line with human rights treaties would support continuous progress toward equity and inclusion, while emphasising that the function of the Act is to protect the inherent human rights of those with disability.

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

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Deafness Forum Australia strongly supports the introduction of a positive duty to eliminate discrimination, which should apply to all duty holders under the Disability Discrimination Act.

All duty holders should be required to take reasonable and proportionate proactive measures to eliminate disability discrimination, including harassment and victimisation.

The current model is counterproductive. it forces people with disabilities to announce their ‘‘otherness’’, which many have described as embarrassing and demoralising particularly when they don’t want their disability to be the primary focus on who they are.

The reality is that many people with hearing loss and other ‘hidden’ hearing conditions don’t always disclose their disability status, because they quite reasonably expect that they will be discriminated against.

Throughout my life I have rarely ever indicated, even when asked, if I had a disability, because I always assumed (probably correctly) that I would be discriminated against and if I were applying for a job, I would almost certainly not get that job

DFA Chief Executive Officer

If positive duties are introduced, duty holders will need guidance that reduces their anxiety and increases compliance. A practical approach could include clear timelines (when compliance will be required), tailored guidance by sector (what this means for you), and staged expectations (what to do now, what’s next).

A “map for schools” example might include:

  • What to do now: Consult with families, document adjustments, and ensure captioning is available.
  • Next: Train all staff, set up student/family advisory groups.
  • Future: Formal reporting on adjustments and inclusion outcomes.

16. Would the creation of a stand-alone duty to provide adjustments better assist people with disability and duty holders to understand their rights and obligations?

In many instances, direct or indirect discrimination may be able to be remedied through the provision of adjustments.

We support the creation of a stand-alone duty to provide adjustments separate from the broader duty to eliminate disability discrimination, to make this specific obligation as clear as possible.

We also support the Disability Commission’s recommendation to remove the reference to ‘reasonable adjustments’ to allow the adjustment provisions to apply as intended.

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

Our preference is for the requirement to provide adjustments under the DDA to extend to the private sphere, as we see this as a necessary precondition to achieve universal equity and inclusion.

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In the alternative, the scope of the duty to provide adjustments should apply to all areas of public life, including those not already covered by the DDA. This would make this obligation clear and easy to enforce, while at the same time, achieving greater consistency for people with disability across public life. The tone should be set from the top, with a clear expectation for universal acknowledgement and uptake across public and private spheres.

19. What is your preferred approach to achieving greater fairness and transparency in claims of unjustifiable hardship: a. the Disability Royal Commission amendment as proposed, b. a new definition of unjustifiable hardship c. other. Please expand on your response

It should be essential for duty holders to consult with a person with disability to understand their disability support needs to establish a claim of unjustifiable hardship.

Consulting with the person with disability provides the opportunity to address any misconceptions the duty holder may have about the person’s needs, allow the duty holder to understand the full impacts on the person with disability, and canvas a range of feasible options for adjustments to address the person’s needs.

Conversely, the opportunity to communicate with the duty holder can provide the person with disability insight into the rationale behind the duty holder’s actions and any limitations to compliance the duty holder may consider relevant.

We support the second option of a new definition of unjustifiable hardship that focuses on whether the benefit to the person and community would be outweighed by the detriment and cost to any person concerned, combined with the additional requirements that the duty holder a) consults with the person with disability, and b) documents the factors they considered in assessing hardship.

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

We support this proposal.

Every person’s disability is unique, and potential and existing employees and employers should be encouraged to discuss job design or the scope of adjustments that could be made to allow a person with disability to perform the requirements of a role. This would prevent employers from potentially rejecting a particular candidate based on a range of assumptions that don’t apply to that individual.

While we appreciate that some people with disability may feel uncomfortable discussing their private health information with a potential employer, the integrity of this information would already be protected under existing privacy legislation.

We support both the introduction of a new statutory definition of inherent requirements in the DDA and the creation of guidance materials, as recommended by the Productivity Commission, to support employers in understanding the factors to be considered when determining the inherent requirements.

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We note that it would be extremely useful if advertised positions were required to specify the inherent requirements of the role. This would allow the person with disability to make an informed decision on whether the role is suitable for them, without having to take the extra step of having to make their own inquiries and potentially disclosing their private health information unnecessarily. We note that some government agencies already specify inherent requirements when advertising for vacancies.

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

People who have hearing loss are at risk of discrimination if their communication needs are not met across a variety of policing and broader corrective services contexts.

We support the recommendation of the Justice and Equity Centre (JEC), which proposes an alternative option - the introduction of a separate duty that could apply to the exercise of functions or powers under State and Territory law, which would ensure other relevant corrective functions, such as corrective services and child protection services, are also covered under the DDA.

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

We are aware that national principles are currently being considered in relation to assistance animals to secure greater consistency in terms of training, evidence, standards of hygiene, and behaviour.

Currently, Section 9(2) of the DDA does not require the accreditation of training organisations or trainers of assistance animals; instead, it focuses on whether the animal has been satisfactorily trained to meet the standards expected of an assistance animal.

We think the current provision is satisfactory. While many people with disability seeking assistance animals will receive these animals through the larger assistance animal providers, others turn to smaller training organisations or sole trainers, usually to meet specific needs.

For me, I went to a smaller provider [a semi-retired sole trader, who had worked with Delta therapy dogs] in the end, especially because I live with atopic asthma and retrievers and labradors shed everywhere, and I knew from my respiratory physician that if I had a shedding dog, it would worsen my health, and they recommended a poodle variety.

The ‘oodle’ varieties are not necessarily known or associated with the big providers as a typical assistance animal because a lot of those big providers have a monopoly and rely on breeding programs they’ve already established, so I had to go with a smaller provider, and it took me literally two to three years at the Administrative Appeals Tribunal to even justify and to prove that this dog that was not only trained by a smaller provider, but also accredited under all the appropriate state and territory schemes was just as legitimate as a dog coming from a bigger provider, but what was my other alternative? Wait four years to get a dog that might give me an asthma attack?

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DFA Member.

Requiring accreditation of trainers or prescribing a set list of approved training organisations under the DDA has the potential to place undue pressure or push specialist sole traders and smaller training organisations out of the market altogether, reducing options for people with disability in a market where there are already supply and demand issues.

I personally believe that we really need to ensure that we are supporting the smaller providers to break into the market. As we see from Coles and Woolworths, a duopoly doesn’t help anybody. Supply needs to keep up with demand, and right now, demand is surpassing supply.

DFA Member.

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

Our preference would be for separate guidance materials to support assistance dog owners, providers, and public businesses and organisations as the best option to ensure that the protections for assistance animals are clarified for both people with disability and duty holders, but we would be interested to know the outcome of the recent public consultation regarding national principles for assistance animals.

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

See our response to question 38.

We would be concerned that listing specific training organisations would have unintended adverse consequences for people with disability and would place further pressure on supply and demand in a tight market, and place undue burden on smaller suppliers with a proven reputation for providing quality assistance animals.

Given that there are plans to release new national principles for the regulation of assistance animals, we would recommend that this potential change be viewed in consideration of the findings from the Department of Social Services’ public consultation on this issue.

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

Action plans are an extremely useful tool to support disability inclusion. If a positive duty is introduced into the DDA, we expect that action plans will become even more important as a way for organisations to demonstrate that they have taken proactive steps to prevent discrimination.

Any role that the DDA can play in encouraging more organisations to commit to developing an action plan would be greatly welcomed. We agree that it would be useful to develop some minimum requirements to support organisations when developing action plans, and that guidance materials explaining the minimum requirements should be introduced to support organisations to prepare action plans that are fit for purpose.

We agree that the AHRC is best positioned to determine what minimum requirements should apply, in collaboration with the disability community, and support the AHRC being given

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explicit powers to provide advice on the development of action plans, set duration timeframes, and reject any plans that do not meet the minimum requirements.

The minimum requirements should not be unduly onerous for organisations to comply with and allow organisations to be creative and flexible.

Minimum requirements should include:

  • Codesigning with people with disability across the development, implementation, and evaluation stages of the action plan
  • Documenting and reporting on outcomes
  • A requirement to seek external advice from the AHRC in the formulation of the action plan.

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

See our response to question 41. External review by the AHRC is important to ensure that all action plans align with the objects and principles of the DDA and will increase the reputation of organisations that have action plans across the disability community.

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

We agree that action plans should not operate indefinitely, and that having an action plan apply for a set period provides for assessment, evaluation, and continual improvement.

We would support the AHRC’s recommendations on the appropriate length.

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

We share concerns about the enforceability of the Disability Standards through the standard AHRC complaint mechanisms and agree that there should be stronger enforcement mechanisms to address non-compliance. Individual complainants should not bear the bulk of responsibility for policing compliance with discrimination laws, and alternative dispute resolution is a poor mechanism for ensuring legal compliance.

We strongly support both the introduction of a positive duty to remove the need for an initiating complaint and the AHRC being given increased regulatory powers to take independent action against offenders.

In determining the scope of enforcement powers the AHRC should be afforded, we note that the AHRC, in its 2021 report, Free and Equal: A Reform Agenda for Federal Discrimination Laws, proposed introducing the concept of ‘responsive regulation’, based on Professor John Braithwaite’s regulatory pyramid. This theoretical conceptualisation allows for a variety of tiered approaches to achieve regulatory compliance, ranging from capacity building to more coercive responses like enforcement orders or prosecution, where there is an active unwillingness to comply.i

Giving the AHRC expanded statutory powers to apply a broad range of enforcement tools, in line with the Braithwaite pyramid, would greatly enhance the AHRC’s enforcement capabilities.

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

Yes. It is logical for duty holders to report on their compliance with the relevant Disability Standards when preparing disability action plans.

We would welcome changes requiring duty holders to report on compliance with the Disability Standards and their proposed strategies for improving compliance as another limb to be demonstrated when submitting their disability action plans to the Australian Human Rights Commission for review.

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

The Australian disability landscape has changed dramatically over the past 33 years and will undoubtedly continue to do so.

Our views and understandings of disability likewise continue to evolve in line with new research and the ongoing efforts of the disability rights movements. At the same time, technological advances are rapidly changing how our society operates and providing greater opportunities for equity and inclusion for people with disabilities than ever before.

It is important that the DDA remains current and relevant across these changes. We agree that the DDA needs to be worded in a way that can be interpreted effectively both now and into the future. We also recommend that the DDA be reviewed more frequently to ensure its ongoing currency and effectiveness.

Additional Comments

Federal discrimination law protections have been the predominant implementation tool for protecting human rights in Australia in giving effect to our international obligations. But the lack of more positive and comprehensive rights protection means that significant gaps in protection remain.

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All Australians with disability deserve confidence and certainty that they can participate equitably across all areas of public life. We need to promote a preventative culture, where people, organisations, and businesses recognise the societal value of disability inclusion, and are incentivised to work towards continual improvement.

For the past twenty-three years, the DDA has been a critical mechanism to realise greater access and inclusion for all Australians with disability and their families. While we acknowledge the valuable role the DDA has had in promoting greater disability inclusion across public life, substantial reforms are overdue to align the Act with contemporary understandings of the social/rights-based model of disability and achieve its full intention.

We welcome this review as an important opportunity to modernise the DDA, codify Australia’s commitment under the United Nations Convention on the Rights of People with Disability (the

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UNCRPD) into domestic law, and strengthen the Act’s capacity to operate as a vehicle for ongoing positive change for people living with disability and society more broadly.

We appreciate the opportunity to provide a submission to this review and would welcome all future opportunities to support the Attorney General’s Department’s work in this area.

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