Submission to the Australian Government’s Review of the Disability Discrimination Act 1992 (Cth)

November 2025

Being

Mental Health Consumers

Acknowledgement of Country

BEING — Mental Health Consumers acknowledges the traditional custodians of various countries across New South Wales. We pay our respects to Elders past, present and emerging. We acknowledge land was never ceded, and was, is, and always will be Aboriginal land. We value your holistic management of country over the millennia and realise that Indigenous knowledge systems have much to teach us about how we thrive as a society.

Recognition of Lived Experience

BEING — Mental Health Consumers values all people with lived experience of mental health challenges, especially those from intersectional backgrounds whose experiences remind us that we need a mental health system for all. We stand alongside you, in your strength and courage, as driving forces in the work we do. Your voice will always matter.

About BEING – Mental Health Consumers
Introduction
- Supplementing the National Mental Health Consumer Alliance
- Support for a Commonwealth Human Rights Act
Recommendations
- Intersectionality
- Policing
- Direct discrimination
  - Burden of proof
  - Removal of the comparator test
- Disability Action Plans
- Disability Standards

About BEING — Mental Health Consumers

BEING - Mental Health Consumers is the independent, NSW peak organisation by and for people with lived/living experience of mental health challenges. 100% of BEING’s staff and board are mental health consumers.

Our mission is to represent people with mental health issues to ensure that lived experience is heard and reflected in decision making, service provision and our communities. Our vision is for all mental health decisions in NSW to be decided in active partnership with people who have lived experience.

BEING is committed to human rights principles of diversity, inclusion, and equity, and believes that recovery is possible for all people who live with mental health challenges.

BEING is also a foundational member of the National Mental Health Consumer Alliance (the Alliance), the national peak body representing mental health consumers.

Introduction

BEING welcomes the opportunity to make this submission to the Australian Government Attorney-General’s Review of the Disability Discrimination Act 1992 (the “DDA”).

BEING believes that any reforms to the DDA need to ensure that it is better aligned with the recommendations from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (“Disability Royal Commission”) and the Australian Human Rights Commission Free and Equal recommendations, 1 which highlighted the need for:

Building a preventative culture
Modernising the regulatory frameworks
Improving the practical operation of the laws
Enhancing access to justice

BEING has been guided by these four focus areas in developing our recommendations in this submission and view our recommendations as positive steps to word toward a more substantive equality approach, in recognition of General Comment No. 6 of the UN Committee on the Rights of Persons with Disabilities, which highlighted formal equality approaches have entrenched inequality for different groups of people with disability.

1 Australian Human Rights Commission, Disability Discrimination Act Review, available at <Disability Discrimination Act review | Australian Human Rights Commission> accessed on 10 November 2025.

This is particularly true for mental health consumers, who, by virtue of their inherent intersectionality, as well as the pervasiveness of dangerous and discriminatory attitudes towards those with psychosocial disability, are routinely denied justice accessing current discrimination law protections.

Key issues of concern for BEING include the need for a positive duty on duty holders to prevent discrimination and ensuring greater accountability for state governments. Currently the burden placed on people with disability is too great and we believe the DDA needs to be rebalanced to provide greater protections for mental health consumers.

At the centre of our submission is the primary goal of better aligning Australia’s legislative frameworks with our commitments to international human rights law. We believe a DDA that is better aligned with Australia’s human rights commitments can provide a robust legal framework for reforming anti-discrimination laws across Australia.

Although Australia has been a signatory to the Convention on the Rights of Persons with Disability for a significant period (Australia ratified the convention in 2008) insufficient progress has been made in implementing it. This lack of progress in implementation was noted in 2019 by the Committee on the Rights of Persons with Disabilities Concluding Observations on the combined second and third periodic reports of Australia. 2

Therefore, this review is an important opportunity for Australia to step up and to make much needed legislative changes that will better align with the commitments we have made as a country to uphold and protect the human rights of people with disability.

Supplementing the National Mental Health Consumer Alliance

We would like to thank the National Mental Health Consumer Alliance (the “Alliance”) for their hard work in integrating the views of all the state mental health consumer peaks in their submission to this inquiry.

The Alliance’s submission aligns with the recommendations we provide in this submission, and as a founding member of the Alliance, we offer our full support for their submission. 3 Our submission supplements the Alliance’s submission.

2 United Nations Committee on the Rights of Persons with Disabilities, Concluding observations on the combined second and third reports of Australia (15 October 2019), CRPD/C/AUS/CO-2-3, available at <https://docs.un.org/en/CRPD/C/AUS/CO/2-3 >, accessed on 21 November 2025.

3 National Mental Health Consumer Alliance, Submission to the Australian Government - Disability Discrimination Act 1992 Review (13 November 2025) [forthcoming].

Support for a Commonwealth Human Rights Act

Further, our recommendations for modernising the DDA are made in the context of a need for national legislative instrument that adequately protects the internationally recognised human rights and wellbeing of people with disability as they go about their day-to-day lives.

The DDA has an essential role as a framework for protection from discrimination but, the essential reforms recommended within this submission would be significantly improved in their operation and effectiveness with the introduction of a national Human Rights Act.

In its 30 May 2024 Report following its Inquiry into Australia’s Human Rights framework, 4 the Parliamentary Joint Committee on Human Rights recommended that the Australian Government introduce a Human Rights Act. BEING and the Alliance supports implementing this recommendation. In doing so, we submit that this will support the implementation of the Disability Royal Commission and the modernisation of the DDA.

Recommendations

Intersectionality

While we welcome the recommendation in relation to intersectionality made by the Alliance at Recommendation 1.3 of their submission, BEING would also like to make an additional recommendation.

BEING recently made a submission to the NSW Law Reform Commission’s ongoing review of the Anti-discrimination Act 1977 (NSW) (ADA). 5 In our submission, we recommended that the NSW Law Reform Commission recommend changes to the ADA which would recognise discrimination on the basis oft multiple protected attributes at the same time.

It is vital that the DDA not only includes strong protection for individuals, as recommended by the Alliance, but also recognise that many mental health consumers – and people with disability generally – have more than one condition that disables them (internal intersectionality), for example a wheelchair user has Complex Post-Traumatic Stress Disorder.

Many mental health consumers also have other protected attributes, like their race and age. Therefore, their experience of discrimination is inherently unique by virtue of their

4 Parliamentary Joint Committee on Human Rights, Inquiry into Australia’s human rights framework (Final Report), Commonwealth of Australia (May 2024), available at https://parlinfo.aph.gov.au/parlInfo/download/committees/reportjnt/RB000210/tocpdf/InquiryintoAustralia’sHumanRightsFramework.pdf, accessed on 21 November 2025. See recommendations 1-4.

5 BEING – Mental Health Consumers, Submission NSW Law Reform Commission Review of the Anti-discrimination Act 1977 (NSW), available at https://being.org.au/wp-content/uploads/2025/11/Anti-Discrimination-Act-Submission-August-2025-FINAL.pdf.

inherent intersectionality. Legal protections must evolve to recognise this lived reality and experience.

The DDA should be changed to allow people to make discrimination claims based on more than one condition and/or protected attribute at the same time. This reflects real life, where people’s experiences of discrimination are often shaped by multiple factors.

Recommendation 1 – That the Attorney General’s Department recommend amending the Disability Discrimination Act 1992 (Cth) to expressly identify that protections against discrimination encompass discrimination against people with multiple impairments (internal intersectionality) and the obligation to make adjustments extends to accommodating multiple impairments.

Recommendation 2 – That the Attorney General’s Department recommend amendment of the Disability Discrimination Act 1992 (Cth) to expressly identify that protections against discrimination encompass intersectional discrimination against people with disability and other attributes identified in federal discrimination and industrial law.

Policing

BEING fully supports all the recommendations made by the Alliance related to policing. In their submission, the Alliance recommended:

The replacement of police led mental health crisis responses with trained, non-armed, mental health outreach teams, available 24/7 and funded nationally (Recommendation 4.8)
Utilising non-police transportation in cases of mental health crisis (Recommendation 4.9)
Implementing crisis care standards that prioritise consent, dignity and therapeutic support (Recommendation 4.10), and
Ensuring independent oversight of all police interactions with people in mental health crisis (Recommendation 4.11).

BEING disagrees with disability discrimination in all aspects of public life, including policing and justice, which should be prohibited. Therefore, there should be no specific circumstances or situations that should be excluded from the application of the DDA.

In recent years in NSW, mental health consumers have experienced sustained violence at the hands of NSW Police. A 2023 NSW parliamentary inquiry noted police officers inadvertently criminalised mental health-related challenges, which has led to

escalation that has been “harmful in a significant number of cases”. 6 This has resulted in tens of deaths in NSW, most recently the death of Collin Burling in July 2025.

Both the violence and deaths experienced in NSW are unnecessary, and from our experience, are a result of dangerous attitudes towards mental health consumers, reflecting broader attitudes held by society. 7

More effective discrimination law protections can save lives in NSW.

Recommendation 3 - That the Attorney General’s Department recommend amending the Disability Discrimination Act 1992 (Cth) to cover all aspects of public life, including policing and justice.

Recommendation 4 - That the Attorney General’s Department recommend precluding specific defences in the Disability Discrimination Act 1992 (Cth) to support the prohibition of discrimination in all aspects of public life, including policing and justice.

Recommendation 5 - That the Attorney General’s Department recommend that state and territory governments be required to report annually under the Disability Discrimination Act 1992 (Cth) on the development, implementation, and outcomes of implementing the National Mental Health Consumer Alliance’s Recommendations 4.8 to 4.11.

Direct discrimination

Burden of proof

Currently the burden of proof under the DDA rests solely with the complainant, who must establish that they were treated unfavourably because of their disability. Mental health consumers typically find it difficult to prove facts about the respondent’s state of mind and often lack access to internal records and evidence that could demonstrate and prove discrimination and intent, creating an evidentiary imbalance in favour of the respondent.

This is further compounded by discriminatory treatment frequently being shaped by unconscious bias and/or entrenched societal attitudes and practices, as being the reason for the respondent’s discriminatory treatment, with these reasons frequently known only by the respondent. This underscores how disparities in power and access to evidence and information can be decisive in discrimination matters.

6 NSW Legislative Council, Portfolio Committee No. 2, Equity, accessibility and appropriate delivery of outpatient and community mental health care in New South Wales (Report No. 64, NSW Government, June 2024), Finding 11.1, p.107

7 NSW Police Force, Summary Internal Review of the NSW Police Force Response to mental health incidents in the Community, available at

<https://www.police.nsw.gov.au/__data/assets/pdf_file/0004/884974/Review_of_the NSW _ Police Force response _to_mental_hea th_incidents in the community.pdf>, accessed on 10 November 2025.

BEING supports Recommendation 4.23 of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 8 which recommended that in cases of alleged discrimination based on disability, the burden of proof should lie with the respondent

A respondent should be responsible for proving that they did not discriminate based on the person’s disability, rather than the person with a disability having to prove that they were discriminated against. This reversal of the burden of proof will make it easier for mental health consumers to seek redress for discrimination.

We make this recommendation as a supplement to the recommendations already made by the Alliance which recommended expanding protections (Recommendations 1.6 to 1.8) and imposing a positive duty on duty holders to ensure that discrimination does not occur in the first place (Recommendation 1.4).

Recommendation 6 - That the Attorney General’s Department recommend that the burden of proof be reversed once a prima facie case of discrimination has been made.

Removal of the comparator test

BEING endorses Recommendation 30 from the Australian Human Rights Commission to remove the comparator test. 9

The comparator test should be replaced with a more accessible and impact-focused approach, like the detriment test adopted in the Discrimination Act 1991 (ACT) and the Equal Opportunity Act 2010 (Vic). Such approaches enable a more subjective approach to assessing unfavourable treatment, enabling decision-makers to engage directly with, and be predominantly informed by, the lived experience of the complainant.

Further, by allowing decision-makers to be guided by the lived experience of the complainant, the detriment test sidesteps the legal uncertainties inherent in identifying a ‘hypothetical comparator’, which the Attorney-General’s Department’s Discussion Paper correctly identified as stymieing direct discrimination claims.

Recommendation 7 - That the Attorney General’s Department recommend the removal of the comparator test and for the test to be replaced with a “detriment test”.

8 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Executive Summary: Our vision for an inclusive Australia and Recommendations, p. 204, Available at: <https://disability.royalcommission.gov.au/system/files/2023- 11/Final%20report%20- %20Executive%20Summary%2C%200ur%20vision%20for%20an%20inclusive%20Australia%20and%20Recommendations.pdf>, accessed on 10 November 2025.

9 Australian Human Rights Commission, Free and Equal A reform agenda for Federal Discrimination Laws (Summary report), p.19, Available at: Free and Equal: A reform agenda for federal discrimination laws (2021) | Australian Human Rights Commission, accessed on 10 November 2025.

Disability Action Plans

The current voluntary approach of Disability Action Plans has led to inconsistent and siloed progress, with the current minimum requirements outlined in section 61 being unable to achieve substantive progress.

BEING supports amendments to the minimum requirements that improves and lifts the standard of Disability Action Plans. Plans have the potential to be an important mechanism to drive systemic changes within organisations and across society, and this potential should be fully realised.

Further, Disability Action Plans have a role in the proposed positive duty to prevent discrimination, which BEING supports, where the absence of, or failure to report on, Disability Action Plans, should be considered as a failure to fulfill the proposed positive duty.

Additional minimum requirements should focus on establishing periodical audits and reviews of plans, requiring duty holders to co-design their action plans with people with disability, embed a clear role for people with disability in implementing, governing and overseeing (including reporting) action plans, and ensuring duty holders provide accessible mechanism for feedback to be provided by people with disability.

Recommendation 8 – That the Attorney General’s Department recommend additional requirements to improve the standard of Disability Action Plans, including but not limited to requiring duty holders to have periodical audits and reviews, co-design their Disability Action Plans with people with disability, clearly define the role of people with disability in the implementation, governance and oversight of the Disability Action Plans, and ensuring accessible feedback mechanisms.

Recommendation 9 – That the Attorney General’s Department recommend a national Disability Standards accountability framework for a certain standard of Disability Action Plans and require public reporting for duty holders, including Commonwealth Agencies as defined by the Public Governance, Performance and Accountability Act 2013 (Cth), and public authorities such as ministers, public servants and government contractors, to a competent national oversight body.

Disability Standards

Disability standards provide an important mechanism, if effectively enforced, to drive much needed systemic change in key areas of public life. However, it is well noted elsewhere that the effectiveness of the standards in addressing unlawful discrimination, as well as the legislative, governance, policy and practice arrangements in place in implementing and achieving compliance with the standards are not fit for purpose.

While we welcome and support Recommendation 3.10 of the Alliance’s submission, which recommends ensuring enforceable accountability of the disability standards in relation to education, we believe that there should also be enforceable accountability for all the other Disability Standards (public transport and access to premises).

Further, BEING supports the recommendations from the Australian Human Rights Commission for an independent review of the effectiveness of the standards and the legislative, governance, police and practice arrangements, and for the standards to be expanded and include new standards at least for employment and digital communication technology.

BEING also supports additional Disability Standards being developed, if Disability Representative Organisations are effectively consulted.

Recommendation 10 – That the Attorney General’s Department recommend the creation of a Disability Standards Framework that includes an enforcement mechanism to compel state and territory governments to implement the Disability Standards when a systemic issue arises.

Recommendation 11 – That the Attorney General’s Department recommend an independent review of the effectiveness of the existing Disability Standards in addressing unlawful discrimination, as well as the existing legislative, governance, policy and practice arrangements to achieve compliance with the standards.

Recommendation 12 – That the Attorney General’s Department recommend expanding coverage of the Disability Standards to include at least employment and digital communication technology and consult with Disability Representative Organisations on the need for other additional standards.

Mental Health Consumers 2

BEING - Mental Health Consumers

Submission to the Australian Government's Review of the Disability Discrimination Act 1992 (Cth)