Feedback on Review of the Disability Discrimination Act

©“ ADAAustralia

oT Your aged and disability advocates

15 November 2025

Commonwealth Attorney-General’s Department 4 National Circuit Barton ACT 2600

By email: DDAReview@ag.gov.au

Dear Attorney-General

Review of the Disability Discrimination Act

Thank you for the opportunity to provide feedback on the review of the Disability Discrimination Act 1992 (the Act). Aged and Disability Advocacy Australia (ADA) appreciates being consulted on this key legislation.

About ADA Australia

ADA is a not for profit, independent, community-based advocacy and education service with more than 30 years’ experience in informing, supporting, representing and advocating in the interests of older people, and persons with disability in Queensland.

ADA also provides legal advocacy through ADA Law, a community legal centre and a division of ADA. ADA Law provides specialized legal advice to older people and people with disability, including those living with cognitive impairments or questioned capacity, on issues associated with human rights, elder abuse, and health and disability legal issues related to decision-making.

ADA advocates and legal practitioners work with identified First Peoples advocates through the Yarn2Action advocacy service for Aboriginal and Torres Strait Islander people with disability, to provide individual advocacy services for Aboriginal and Torres Strait Islander people with disability.

Consultation Paper

ADA has reviewed the consultation paper and provides feedback in relation to particular questions, as identified below.

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

Disability should be defined according to the social model of disability and the UN Convention on the Rights of Persons with Disabilities (CRPD). This means recognising disability as arising from the interaction between an individual’s impairment and attitudinal, environmental, and institutional barriers, not just medical or impairment-based criteria.

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This approach is supported by both the Disability Royal Commission (DRC) and the Australian Human Rights Commission (AHRC).

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

An amended definition should align the CRPD and reflect the social model of disability, one that recognises the role of societal barriers in creating disadvantage. The definition should also expressly include psychosocial disability, neurodiversity, and conditions that are fluctuating or episodic in nature.

3. Would the DDA be strengthened by expressly allowing claims for multiple or combined protected attributes?

Yes, this is a necessary amendment. The commonality of intersectional discrimination was extensively documented by the DRC, with recommendations that the legal framework should be amended to expressly recognise this compounded form of discrimination.

4. Could other changes be made to recognise and protect people with intersecting identities?

Yes, several changes could be introduced with a view to improve protections. A stand-alone intersectional discrimination provision should be explored, to address the unique experiences of individuals facing multiple forms of disadvantage. A critical component relates to the obligations of duty holders, who should be required to consider intersectional barriers when designing and implementing policies.

Systemic oversight must be equally improved. ADA considers it appropriate for the AHRC to be provided with expanded powers to enable the investigation of systemic intersectional discrimination.

5. How should the burden of proof be addressed in the DDA?

The DRC recommends a shared or shifted burden of proof: once a complainant establishes a prima facie case, the duty holder must show the treatment was not discriminatory. This aligns with international human rights standards and addresses systemic power imbalances. As with other discrimination framework shifts, ADA supports the implementation of a positive duty in relation to the obligations of duty holders under the Act.

6. What test should be used for direct discrimination?

ADA supports using a simple causation test: Was disability a reason for less favourable treatment?

Technical comparator requirements should be removed. The focus, and purpose of the test should be whether disability was a reason for treatment that may be discriminatory. The test should clarify that disability does not have to be the sole, or primary reason, and that the impact of the conduct is determinative, not the intent.

7. How could the definition of indirect discrimination be amended?

ADA recommends simplifying language, with a clear focus on the actual effect of policies or practices on people with disability, rather than on technical or legalistic formulations. It is also important to clarify evidentiary expectations so that people with disability do not face unreasonable or overly complex requirements when bringing a claim.

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To promote accessibility and fairness, ADA recommends that the burden of proof should be shared, or shifted in certain circumstances to address systemic power imbalances. As mentioned, once a complainant establishes a prima facie case of discrimination, the onus should shift to the duty holder to demonstrate that their conduct was not discriminatory.

The test must be accessible for both people with disability and duty holders, with clear expectations, obligations and rights for both parties and particularly, to ensure that the process does not deter legitimate claims.

8. Should the reasonableness element in indirect discrimination be: (a) removed (b) retained and supplemented with factors (c) replaced by a legitimate and proportionate test (d) other

ADA supports retaining the reasonableness element in the definition, as well as supplementing it with a clear list of relevant factors to be considered. Statutory guidance should be developed to assist parties in understanding what constitutes reasonableness in the circumstances.

In the alternative, ADA considers that the adoption of a legitimacy and proportionality test may be appropriate.

9. Should the language ‘does not or would not comply, or is not able or would not be able to comply’ be removed from indirect discrimination?

Yes – this wording is unnecessarily complex. ADA recommends replacing this with simplified language.

10. Should the Disabilities Convention be included in the objects provision?

ADA strongly supports the inclusion of a explicit reference to the CRPD in the objectives of the Act.

11. Should the DDA be interpreted in a way that is beneficial to people with disability?

Yes, and guidance should be available to reflect this. Beneficial interpretation of the Act will support agencies and government with enacting the objectives of the Act.

12. If there was a positive duty in the DDA, who should it apply to?

ADA strongly supports the introduction of a positive duty, which should apply to all duty holders under the Act, including employers, service providers, and public authorities.

13. Lessons from the positive duty in the Sex Discrimination Act?

A key lesson observed from the introduction of the positive duty in the Sex Discrimination Act is that the introduction of clear guidance and comprehensive education for duty holders was an essential component of that framework’s effective transition and implementation.

Proactive compliance and reporting mechanisms are also necessary, with clear and achievable timeframes to undertake any specified actions so that organisations are encouraged to take active steps to prevent discrimination rather than simply responding to complaints.

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Additionally, the AHRC should be given robust monitoring and enforcement powers to ensure that the positive duty is upheld and that there are meaningful consequences for non-compliance. These elements together help create a culture of accountability and continuous improvement.

14. Costs, benefits, and impacts of a positive duty?

The introduction of a positive duty under the Act will involve some initial costs, particularly in relation to compliance and training for duty holders.

However, the benefits are significant, including a reduction in discrimination, improved inclusion for people with disability, and greater legal clarity for all parties. Duty holders will need to update their policies and practices to meet these new obligations.

Importantly, these changes would also contribute to a more inclusive and equitable cultural and societal landscape, fostering greater respect, participation, engagement and opportunity for people with disability across the community.

15. Should there be exceptions or limits to a positive duty?

Any exceptions considered appropriate should limited, narrowly defined and bearing an obligation to provide justification to avoid undermining the duty’s effectiveness.

16. Would a stand-alone duty to provide adjustments assist understanding?

Yes. A clear, stand-alone duty will clarify rights and obligations for both people with disability and duty holders.

17. Should the duty to provide adjustments extend beyond current areas?

Yes – ADA strongly supports extending the duty across all areas of public life.

18. Would removing ‘reasonable’ from ‘reasonable adjustments’ create unintended consequences?

It is possible that removing ‘reasonable’ could create unintended consequences with additional burden transferred to both persons with disability and duty holders.

ADA recommends retaining the reference, with further guidance to clarify its meaning in the context.

19. Preferred approach to unjustifiable hardship?

ADA supports the approach proposed by the DRC, which suggests that relevant factors that may be considered when determining whether an adjustment would impose unjustifiable hardship on a duty holder.

These factors should include the nature and benefit of the adjustment for the person with disability, the financial and other resources available to the duty holder, and the impact of making or not making the adjustment on all parties involved.

The key component, in our view, is to facilitate a process that encourages genuine consultation between duty holders and people with disability before decisions are made, ensuring that the perspectives and needs of those affected are properly understood and considered.

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20. Views on amending the Act to encourage consultation before employment decisions?

ADA supports amendments that will encourage meaningful consultation about adjustments and inherent requirements.

It is critical that persons with disability are provided the opportunity to receive advocacy and support throughout these processes, without which, the inherent power imbalance will only serve to reinforce discriminatory effects for persons with disability.

27. How could the Act protect against offensive behaviour/harassment?

The Act could be amended to include explicit prohibitions on offensive behaviour and harassing conduct that is directed at people with disability. This would involve clearly defining what constitutes offensive behaviour and harassment, such as actions or comments that humiliate, intimidate, or degrade a person because of their disability. The Act could also establish clear avenues for people with disability to make complaints about offensive behaviour or harassment, and provide for appropriate remedies and penalties.

Both the DRC and the AHRC have recommended that the law should not only prohibit discrimination, but actively prevent and address harassment and vilification. This requires clear definitions in the Act, strong enforcement mechanisms, and public education to ensure that people with disability are protected from all forms of offensive conduct.

28. How should ‘offensive behaviour’ and ‘harassment’ be defined?

‘Offensive behaviour’ and ‘harassment’ should be defined as behaviour that humiliates, intimidates, or degrades a person because of their disability. These definitions should be consistent with those used in other anti-discrimination laws to ensure clarity and coherence across legal protections.

ADA supports the findings concluded by the Queensland Human Rights Commission in its Building Belonging report which emphasises that the law should clearly prohibit conduct that undermines a person’s dignity or sense of belonging on the basis of disability. It recommends that definitions of offensive behaviour and harassment be modernised and aligned with best practice, ensuring that protections are robust, easy to understand, and effective in preventing harm.

29. Should there be exemptions for any behaviour, as in the Racial Discrimination Act?

Any exemptions relating to offensive behaviour or harassment should be limited and carefully constructed to ensure that they do not undermine protections.

ADA supports the AHRC retaining the ability to grant temporary exemptions, with an emphasis on ensuring that decisions in this area are transparent with clear accountability obligations.

30. Further gaps in legislative framework for vilification?

Yes, there are gaps in the legislative framework regarding vilification of people with disability. The DRC has specifically recommended that the Act be amended to include an explicit prohibition on disability vilification.

The provisions of the current Act that address discrimination do not offer protection against conduct that incites hatred, serious contempt, or severe ridicule towards people with disability.

The DRC provided stark insight into the effects of vilification for persons with disability – including creating, or contributing to a hostile environment, and reinforcing negative stereotypes. The introduction of a clear prohibition would provide stronger protection, send a clear message that such conduct is unacceptable, and align with protections already in place for other groups, such as those provided under the Racial Discrimination Act.

31. How could the Act be amended to cover policing?

The Act could be amended to ensure that all aspects of policing are captured and to better protect persons with disability when exposure to law enforcement.

ADA regularly support clients who have faced significant challenges when interacting with police. This is particularly true for persons with neurological or psychological disabilities, such as autism, intellectual disability, or mental health conditions – disabilities that may not be immediately apparent to a third party. These challenges include being misunderstood, misidentified as non-compliant or threatening, and being subjected to excessive force.

To address this, ADA considers that the Act should:

• Apply to all policing activities, including street encounters, arrests, custody, and emergency responses.
• Require police to make reasonable adjustments for people with disability, including communication supports and de-escalation strategies.
• Mandate disability awareness and trauma-informed training for all police officers, with input from people with lived experience of disability.
• Establish independent disability responders to assist police, and offer supports such as specialist advocacy (including legal advocacy) for persons with disability.
• Ensure robust and accessible mechanisms for complaints and accountability in cases of discrimination or harm.

34. Should the AHRC be given power to grant special measures certificates?

Yes – it is important that these formal authorisations are retained, to allow organisations or individuals to implement actions or programs that are intended to promote equality for people with disability.

The purpose of a special measures certificate is to provide legal certainty and a mode of protection for positive actions that align with the broader goals of participation, equity and engagement – such as targeted recruitment, services, and scholarship. These are consistent with the principles of equality that is at the core of the CRPD.

35. Should a definition for special measures be added?

The inclusion of a definition that aligns with the CRPD and anti-discrimination laws would be beneficial.

36. Should a definition for temporary exemptions be added?

ADA does not have a strong view as to whether a definition should be included in the Act. The AHRC has developed detailed guidelines and criteria for how temporary exemptions are granted pursuant to the Act.

41. Minimum requirements for action plans?

Yes, there should be minimum requirements for disability action plans under the Act. These requirements should be set out in clear guidelines that cover key areas, with the expectation that developed action plans are meaningful and effective.

Genuine consultation with people with disability and relevant stakeholders during the development of the action plan is critical, ensuring that their perspectives and needs are central to the process.

The action plan should include detailed strategies for implementation, outlining specific actions, timelines, and responsibilities, and tailored to the relevant context.

Further, appropriate mechanisms for monitoring progress, including measurable indicators and regular reporting is required. In alignment with other recent reforms, the plan should include provisions for periodic review and evaluation, allowing for adjustments and improvements over time.

42. Should the AHRC be able to reject inadequate action plans?

ADA supports the AHRC being provided with commensurate compliance and enforcement powers to apply to matters under the Act, as those that the agency has recently acquired in relation to matters under the Sex Discrimination Act 1984.

These expanded powers relate to investigation capabilities, issuing of compliance notices, and pursuing other recourse and orders to enforce obligations.

In expanding the AHRC’s powers relating to enforcement of the Act, it may be appropriate for the agency to approve or reject action plans in certain circumstances.

43. Set period for action plan validity?

Yes, the plans should provide for regular and periodic review, and renewal requirements, with adjustment mechanisms as may be necessary.

45. How could compliance/enforcement of Disability Standards be improved?

As mentioned above, the AHRC powers should be expanded to facilitate compliance and enforcement powers for matters relating to the Act, akin to those now in place relating to matters arising under the Sex Discrimination Act 1984.

This should include regular audits and reporting obligations.

50. How to ensure the DDA remains fit-for-purpose?

The Act must be modernised to align with community standards. This includes, critically, consulting with persons with disability to ensure the legislation reflects best practice, is able to address emerging issues, and better aligns with obligations pertaining to human rights protections and recognitions set out in domestic law, and with international rights treaties and conventions.

This review is an opportunity to close gaps in the Act that do not, as currently drafted, reflect the objectives of the CRPD.

Thank you again for the opportunity to comment. ADA would be pleased to further assist the

Committee with its inquiry. Should you wish to discuss this submission, please do not hesitate to redacted

Yours faithfully redacted

Chief Executive Officer