Australian Lawyers for Human Rights (ALHR)

Submission in relation to the Australian Government Attorney-General’s Department Review of the Disability Discrimination Act 1992 (Cth)

21 November 2025

Australian Government Attorney-General’s Department

3-5 National Circuit BARTON ACT 2600 Australia

By Email: DDAreview@ag.gov.au

ALHR Email: redacted: s47F - Personal privacy

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Contents

• 1. Acknowledgement
• 2. About Australian Lawyers for Human Rights (ALHR)
• 3. Executive Summary
• 4. Summary of recommendations
  • Defining disability
    • Intersectionality
  • Direct discrimination
  • Indirect discrimination
  • Aligning with the Convention of the Rights of Persons with Disabilities
  • Positive duty
    • Adjustments
  • Unjustifiable hardship
  • Inherent requirements
  • Exclusionary discipline and suspension
  • Offensive behaviour
    • Vilification
  • Services provided by police officers
    • Exemptions
  • Assistance animals
  • Disability action plans
  • Disability standards
  • Human Rights Act
• 5. Responses to Questions in the Issues Paper
  • 1. Part 1 of the Act
    • Defining disability
      • Intersectionality
    • Direct discrimination
    • Indirect discrimination
    • Aligning with the Convention of the Rights of Persons with Disabilities
  • 2. Part 2 of the Act
    • Positive duty
  • 3. Part 3 of the Act
       • Adjustments
    • Unjustifiable hardship
    • Inherent requirements
    • Exclusionary discipline and suspension
  • 4. Part 4 of the Act
    • Offensive behaviour
      • Vilification
    • Services provided by police officers
  • 5. Part 5 of the Act - Exemptions
  • 6. Part 6 of the Act
    • Assistance animals
    • Disability action plans
    • Disability standards
  • 7. A National Human Rights Act

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1. Acknowledgement

Australian Lawyers for Human Rights (ALHR) acknowledges the traditional owners and custodians of the lands, rivers and seas on which we work, live and travel across Australia as the first people of this country. We recognise that the land belonging to these peoples was never ceded. We pay our deep respect to Elders past and present. We recognise that human rights apply to all individuals and have a special significance for Aboriginal and Torres Strait Islander peoples - the first owners of this land, members of its most enduring cultures, and individuals for whom the issue of rights protection has great and continuing importance. 1

2. About Australian Lawyers for Human Rights (ALHR)

ALHR was established in 1993 and is a national association of Australian solicitors, barristers, academics, judicial officers and law students who practise and promote international human rights law in Australia. ALHR has active and engaged National, State and Territory committees and specialist thematic committees.

ALHR seeks to utilise its extensive experience and expertise in the principles and practice of international law and human rights law in Australia to:

• Promote Federal and State laws across Australia that comply with the principles of international human rights law;
• Engage with the United Nations in relation to Australian human rights violations;
• Promote and support lawyers’ practice of human rights law in Australia;
• Engage internationally to promote human rights and the rule of law.

Through advocacy, media engagement, education, networking, research and training, ALHR promotes, practices and protects universally accepted standards of human rights throughout Australia and overseas.

3. Executive Summary

ALHR is grateful for the opportunity to make the following submission to the review of the Disability Discrimination Act 1992 (Cth) [“DDA”]. The DDA was a landmark piece of legislation, but it introduced a formal equality approach that has, over time, proven inadequate and has, as noted in General Comment No. 6 of the UN Committee on the Rights of Persons with Disabilities, entrenched inequality for different groups of people with disability.

1 Preamble (7), Human Rights Act 2004 (ACT).

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The Act’s focus on formal, like-for-like treatment has failed to account for the diverse realities of people with disability, often legitimising systemic barriers and neutral-seeming practices that perpetuate disadvantage.

This submission outlines a comprehensive roadmap for reforming the DDA to shift its foundation from formal to substantive equality. Achieving this requires a fundamental modernisation of the Act’s core mechanisms and principles. Central to this transformation is shifting toward a more modern and intersectional understanding of disability discrimination.

The law must recognise that people experience discrimination in unique and compounded ways based on the intersection of multiple disabilities (‘internal intersectionality’) or the combination of disability with other protected attributes such as race, sex, or Indigeneity (‘external intersectionality’). By expressly providing for claims based on these intersecting identities, the DDA can move beyond a one-size-fits-all model and deliver justice that reflects lived experience.

A key function of modern discrimination law is its role in promoting the attitudinal change needed to achieve substantive equality. The current reactive, complaints-based model places the entire burden of enforcement on individuals who have already suffered harm, doing little to shift the culture of organisations or prevent discrimination from occurring. The reforms proposed by ALHR are designed to use the law as a lever for this essential cultural shift. This involves replacing the outdated comparator test for direct discrimination with a ‘detriment test’ that centres the complainant’s lived experience, and amending the burden of proof to rectify the profound information asymmetry that currently favours respondents.

Crucial to this endeavour is promoting a human rights-based culture through positive duties. ALHR strongly advocates for the introduction of a positive duty to prevent discrimination, which would oblige all duty holders to take proactive, reasonable, and proportionate measures to eliminate discrimination, harassment, and victimisation before they happen. This must be coupled with a proactive, stand-alone duty to provide accommodations (adjustments), clarifying that organisations bear the primary responsibility for identifying and removing barriers to inclusion. These positive duties would transform the DDA from a tool for individual redress after the fact into a dynamic framework for systemic, preventative change, embedding inclusivity into the fabric of organisational operations.

This transformation also demands a critical review of the DDA’s exemption framework. Permanent exemptions, particularly in areas such as migration law, create sanctioned loopholes that systemically discriminate against people with disability based on arbitrary and outdated assumptions. These exemptions, many of which were framed before Australia’s ratification of the Convention on the Rights of Persons with Disabilities (CRPD), fundamentally undermine the Act’s core purpose.

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Furthermore, robust oversight mechanisms for temporary exemptions and special measures are essential to ensure they are not misused, remain time-bound, and genuinely progress the goal of full inclusion. Closing these legislative gaps is a necessary complement to the proposed positive duties, ensuring the DDA operates as a coherent and powerful instrument for substantive equality

Other critical recommendations include strengthening protections against vilification and harassment, refining the unjustifiable hardship and inherent requirements tests to prevent their misuse as gatekeeping devices, and ensuring the DDA’s coverage extends unequivocally to all areas of public life, including policing. Furthermore, amending the objects clause to incorporate the CRPD and an explicit interpretative provision will ensure that all decision-makers are guided by a contemporary, rights-based understanding of disability.

ALHR also submits that modernisation of the DDA alone is not enough to adequately protect the internationally recognised human rights and wellbeing of people with disability as they go about their day-to-day lives. The DDA delivers an essential framework for protection from discrimination but, the essential reforms recommended within this submission would be significantly improved in their operation and effectiveness by the introduction of a federal Human Rights Act. In its 30 May 2024 Report following its Inquiry into Australia’s Human Rights Framework, the Parliamentary Joint Committee on Human Rights, recommended that the Australian Government introduce a Human Rights Act. 2 Implementing this recommendation should be supported as part of the implementation of the Disability Royal Commission and the modernisation of the DDA.In conclusion, the extent of reform required is significant.

By adopting these recommendations, the Australian Government can transform the DDA and Australia’s framework for protecting the human rights of people with disability into a world-leading legislative instrument. Doing so will not only provide redress for discrimination but will actively foster the attitudinal and systemic change necessary to achieve the substantive equality promised, but not yet delivered, to all people with disability in Australia.

Other submissions

In addition to this submission ALHR has lodged a joint submission on behalf of Welcoming Disability, a joint campaign led by ALHR and Down Syndrome Australia which calls for an end to Australia’s disproportionate discrimination against migrants with disability and health conditions. That submission has been endorsed by eighty-nine (89) organisations and individuals.

2 Inquiry into Australia’s human rights framework, Parliamentary Joint Committee on Human Rights, Commonwealth of Australia, May 2024, Recommendations 1 to 4

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ALHR has also signed the Network for Disability Law Reform joint statement: Time for a Stronger Disability Discrimination Act. 3

ALHR has further formally endorsed the following submissions to this Review:

• Summary and Recommendations, Women With Disability Australia’s submission;
• Queensland Advocacy for Inclusion Submission.

4. Summary of recommendations

Defining disability

1. Retain the form and approach currently taken in defining disability in the Disability Discrimination Act 1992 (Cth) but amend the language in section 4(1) in consultation with relevant Disability Representative Organisations.

Intersectionality

2. Amend 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.

3. Amend 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.

4. Amend the Australian Human Rights Commission Act 1986 (Cth) to require decision makers dealing with complaints to consider intersectional discrimination in terms of both whether or not unlawful discrimination took place and in the orders made when unlawful discrimination is found.

Direct discrimination

5. Revise the direct discrimination test and replace the comparator test with a “detriment test”.

6. Amend the burden of proof so that once a complainant demonstrates they were treated unfavourably the burden shifts to the respondent.

3 Available here: https://nationallegalaid.org.au/news/dda-reforms

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Indirect discrimination

7. Remove the “Unable to Comply” requirement from indirect discrimination.

8. Replace the ‘reasonableness’ test with a ‘legitimate and proportionate’ test, together with recommending provision of guidance, on what would, and would not be, considered legitimate and proportionate.

Aligning with the Convention of the Rights of Persons with Disabilities

9. Include reference to the Convention on the Rights of Persons with Disabilities in sections 3 and 4 of the Disability Discrimination Act 1992 (Cth).

10. Include an express interpretative clause to ensure all administrative and judicial decision-makers interpret the Disability Discrimination Act 1992 (Cth) in a manner that promotes full compliance with the Convention on the Rights of Persons with Disabilities (CRPD), including future developments in interpretation.

Positive duty

11. Introduce a positive duty in the Disability Discrimination Act 1992 (Cth) requiring all duty holders to take reasonable and proportionate measures to prevent not only discrimination, but also harassment, victimisation and non-compliance with disability standards. The duty should:

    a) apply to all duty holders under the DDA, including Commonwealth entities as defined under the Public Governance, Performance and Accountability Act 2013 (Cth), and public authorities such as ministers, public servants, and government contractors

    b) be drafted in clear, accessible language that provides legal certainty for duty holders and individuals

    c) include an obligation for duty holders to actively work with people with disability and their representative organisations

    d) be supported by enforceable regulatory powers, including monitoring, compliance notices and public reporting by the Australian Human Rights Commission (AHRC), and

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e) be guided by the principle of reasonable and proportionate measures consistent with comparative models under the Sex Discrimination Act 1984 (Cth), the Equal Opportunity Act 2010 (Vic) and the Discrimination Act 1991 (ACT).

Adjustments

12. Amend the Disability Discrimination Act 1992 (Cth) to:

    a) Create a clear, stand-alone duty to provide adjustments, with failure to provide an adjustment continuing to constitute unlawful discrimination.

    b) Replace the term “reasonable adjustments” with “adjustments” throughout the DDA and related instruments, with notes updated to reflect the scope of the obligation.

    c) Clarify that duty holders have the primary responsibility to identify, design, implement and review adjustments in consultation and co-design with the person with disability and, where appropriate, with their chosen supporters and representative organisations.

    d) Provide clear statutory guidance on compliance, including factors for assessing what constitutes appropriate adjustments, the requirement to act without undue delay, and record-keeping.

    e) Align the stand-alone adjustments duty with the proposed positive duty to eliminate discrimination, ensuring integration between individual accommodations and system-level prevention.

Unjustifiable hardship

13. Implement Disability Royal Commission Recommendation 4.32 by adding explicit factors to section 11 requiring consideration of the extent of consultation with the person with disability and of alternative measures to remove or reduce hardship.

14. Reframe section 11 to reflect proportionality and transparency, drawing on section 4.1 of the Disability (Access to Premises — Buildings) Standards 2010, including public funding, community function, resources reasonably available, benefits to people with disability and the broader community, and evidence of genuine consultation with disability representative organisations.

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15. Require duty holders who rely on unjustifiable hardship to document factors considered, reasons, and alternatives assessed, and to provide this on request to the person affected, the AHRC and/or a court.

Inherent requirements

16. Amend section 21A of the Disability Discrimination Act 1992 (Cth) to:

    a) define “inherent requirements” as those that are necessary to the fundamental nature of the employment or educational program and incapable of being eliminated or modified without fundamentally altering that nature b) clarify that inherent requirements must be distinguished from marginal, peripheral or traditional practices that can be modified, and c) require duty holders to consider all possible adjustments and to consult with the person with disability before determining that inherent requirements cannot be met.

17. Insert an express provision placing the burden of proof on the duty holder to demonstrate, with credible evidence, that the requirement is genuinely inherent.

18. Amend section 21A(2) to require decision-makers to consider:

    a) the nature and extent of adjustments that have been or could reasonably be made, and b) the extent of consultation with the person with disability.

19. Task the Australian Human Rights Commission, in partnership with relevant regulators and professional accreditation authorities, to issue guidance on compliance with section 21A and to review the use of “inherent requirement statements” across employment, education and accreditation contexts.

20. Make clear that work health and safety concerns must be addressed separately from the inherent requirements exception and cannot be used to broaden its scope.

Exclusionary discipline and suspension

21. Amend section 22(2) of the Disability Discrimination Act 1992 (Cth) to replace “by expelling the student” with “by subjecting the student to exclusionary discipline.”

22. Insert a definition of exclusionary discipline in the DDA as “actions by an educational authority or institution that result in the withdrawal or denial of education or training from a student with disability, including suspensions, expulsions, informal or undocumented removals (including ‘take-home’ requests), enforced part-time attendance, cancellation of enrolment in early childhood education and care.”

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23. Insert into section 22 an explicit requirement that, before imposing exclusionary discipline, the duty holder must consider and document:

    a) whether the relevant conduct or behaviour is a symptom or manifestation of disability b) whether the duty to provide adjustments has been met, and c) whether the positive duty to prevent discrimination and promote equality has been met, including the use of trauma-informed, de-escalation and supports.

24. Require written reasons and review: any exclusionary decision must be documented with reasons, evidence of consultation, adjustments considered and implemented, and a review date.

25. Task the Australian Human Rights Commission, with state and territory education regulators, to issue authoritative guidance on compliant practice, data collection and public reporting of exclusionary incidents involving students with disability.

Offensive behaviour

26. Amend the Disability Discrimination Act 1992 (Cth) to include a robust general prohibition on conduct that humiliates, intimidates, insults, offends, ridicules or demeans people with disability.

27. Base the general prohibition on section 18C of the Racial Discrimination Act 1975 (Cth) (RDA), and section 22 of Anti-Discrimination Act 1998 (Tas), and tailor it to the lived experiences of people with disability and include explicit reference to, but not limited to, interference with mobility, communication, and disability aids/equipment.

Vilification

28. Include specific protections against vilification of people with disability in the Disability Discrimination Act 1992 (Cth) modelled on section 19(b) of the Anti-Discrimination Act 1998 (Tas).

29. Extend the protection provided under section 18C of the Racial Discrimination Act to other protected attributes, including disability, with appropriate safeguards to ensure proportionality and contextual assessment of harm.

Services provided by police officers

30. Amend the Disability Discrimination Act 1992 (Cth) to cover all aspects of public life, including policing and justice.

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31. Preclude 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.

Exemptions

32. Amend l section 52 of the Disability Discrimination Act 1992 (Cth) such that the extent of discrimination it renders legally permissible is narrowed while still balancing the policy consideration of reasonable and necessary measures to protect public health by containing infectious diseases.

33. Review and remove:

    1. Australia’s interpretative declaration on Article 18 of the Convention on the Rights of Persons with Disabilities 4; and

    2. all formalities and procedures relating to migration and asylum, in order to ensure compliance with Australia’s obligations under: (a) the Convention on the Rights of Persons with Disabilities (b) the Convention on the Rights of the Child the remaining core United Nations human rights treaties to which Australia is a State Party.

34. Review all other exemptions in the Disability Discrimination Act 1992 (Cth) currently in light of Australia’s obligations under the Convention of the Rights of Persons with Disabilities and amend accordingly to ensure obligations are not undermined by the framing of permanent exemptions.

35. Amend the Disability Discrimination Act 1992 (Cth) to provide more oversight powers and evaluation of temporary exemptions and special measures.

Assistance animals

36. Amend the Disability Discrimination Act 1992 (Cth) to clearly specify that assistance animals must be under the control of their handler and meet defined hygiene and behaviour standards in public spaces.

37. Develop and publish complementary practical guidance materials to assist individuals and duty holders in understanding their rights and responsibilities.

38. Prescribe specific training organisations that meet international best practice standards (e.g., those accredited by the International Guide Dogs Federation), and

4 Australia, Interpretative Declaration to the Convention on the Rights of Persons with Disabilities, signed 17 July 2008, [2008] ATNIF 15, [2008] ATS 12 (entered into force 16 August 2008).

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establish a national framework for assistance animals under the Disability Discrimination Regulations.

Disability action plans

38. Include additional mandatory requirements to ensure a certain standard for Disability Action Plans by:

    (a) setting out a timeline for periodical audits and reviews, with appropriate amendments made to the plan

    (b) requiring organisations to co-design the development of action plans with people with disability

    (c) requiring organisations to embed a clear role for people with disability, defined by people with disability, in the implementation, governance and oversight, including reporting, of action plans, and

    (d) ensuring accessible mechanisms exist to facilitate feedback from people with disability.

Disability standards

39. Conduct 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.

40. Expand the 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.

Human Rights Act

41. Accompany the modernisation of the Disability Discrimination Act 1992 (Cth) with the introduction of a comprehensive federal Human Rights Act.

5. Responses to Questions in the Issues Paper

1. Part 1 of the Act

Defining disability

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

ALHR RECOMMENDATION

1. Retain the form and approach currently taken in defining disability in the Disability Discrimination Act 1992 (Cth) but amend the language in section 4(1) in consultation with relevant Disability Representative Organisations.

Rationale

In the Productivity Commission’s 2004 Review of the DDA, the Commission found that the DDA “…is based on a ‘social model’ of disability discrimination, but it uses a medically based definition of disability”. 5 ALHR agrees with the Commission’s finding, but recognises that adopting a social model definition of disability, like the one found in Article 1 of the Convention of the Rights of Persons with Disabilities (CRPD), will likely result in negative outcomes for people with disability accessing disability discrimination protections.

The current definition of disability in the DDA is necessarily and extremely broad, so as to capture a person with a condition and who experiences discrimination related to that condition. Further, we are not aware of people being excluded from legal protection under the current approach. Therefore, ALHR does not support a departure from this approach.

However, we note the widely expressed view that the language used in the DDA is deficit-based and uses medical model language. This should be changed, but instead of recommending specific changes, we recommend relevant Disability Representative Organisations be consulted on their preferred language.

Intersectionality

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

(2) 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?

ALHR RECOMMENDATIONS

1. Amend 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.

5 Productivity Commission, Review of the Disability Discrimination Act 1992: Productivity Commission Inquiry Report (Report No 30, vol 1, Australian Government, 2004) 304, Finding 11.1.

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2. Amend 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.

3. Amend the Australian Human Rights Commission Act 1986 (Cth) to require decision makers dealing with complaints to consider intersectional discrimination in terms of both whether or not unlawful discrimination took place and in the orders made when unlawful discrimination is found.

Why reform is needed

ALHR supports and endorses the recommendations made by the Australian Discrimination Law Experts Group (ADLEG) and repeats them here.

Many people with disability have more than one condition that disables them (internal intersectionality), for example a wheelchair user has Complex Post-Traumatic Stress Disorder, and many people with disability also have other protected attributes, like their race. Therefore, people with disability experience discrimination uniquely by virtue of their inherent intersectionality, so legal protections must evolve to recognise this experience.

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

Direct discrimination

(1) 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?

(2) How should the burden of proof be addressed in the Disability Discrimination Act?

ALHR RECOMMENDATIONS

1. Revise the direct discrimination test and replace the comparator test with a “detriment test”.

2. Amend the burden of proof so that once a complainant demonstrates they were treated unfavourably the burden shifts to the respondent.

Why reform is needed to replace the comparator test

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The current comparator-based test is legally uncertain and often fails to capture the lived reality of discrimination. It requires identifying a hypothetical person without the protected attribute in similar circumstances, which can create a conceptual impasse, particularly for attributes like gender identity or disability where the experience of harm is manifestly unique for each person and therefore not easily comparable.

Case Study — Advancing equality through impact-based discrimination tests

In VVR v Trustee for Ironfish Property Management Melbourne Unit Trust [2024] VCAT 222, the Tribunal found that a transgender woman experienced unfavourable treatment when she was repeatedly deadnamed (the practice of using a trans or non-binary person’s previous name, that no longer aligns with the person’s gender identity). Under a comparator test, the Tribunal would have had to consider how a cisgender person would be treated in a superficially similar scenario (e.g., being called by a former name). However, the profound harm of deadnaming is uniquely tied to the trans experience. The detriment test allowed the Tribunal to acknowledge this unique impact, an outcome that may have been obscured by the impractical hypotheticals of the comparator test.

The detriment test, already adopted in the Discrimination Act 1991 (ACT) and the Equal Opportunity Act 2010 (Vic), focuses on the impact of the treatment on the complainant. This shift centres the complainant’s lived experience, leading to a more inclusive, context-sensitive, and accessible application of the law. In Victoria, the adoption of the detriment test has enabled a more subjective approach to assessing unfavourable treatment, focusing on an “analysis of the impact of treatment on the person complaining of it”. 6

Subjectivity and sensitivity are critical in disability discrimination, where an individual’s condition/s can shape their experience. For example, individuals with Attention-Deficit Hyperactivity Disorder or Post-Traumatic Stress Disorder, may experience heightened rejection sensitivity, making them more vulnerable to humiliation in situations others might dismiss as minor. A comparator-based test risks overlooking the very reason a person perceives treatment as unfavourable.

Why reform is needed to amend the burden of proof

The current legal framework places a disproportionate and often insurmountable burden on complainants. They must prove the respondent’s state of mind but lack access to the internal records and information typically held exclusively by the alleged discriminator. This

6 Slattery v Manningham City Council [2013] VCAT 1869 (‘Slattery’) at [53] Deputy President Nihill stated the concept of ‘unfavourable’ requires ‘…an analysis of the impact of treatment on the person complaining of it’, although the analysis ‘…may be informed by consideration of the treatment afforded relevant to others.’

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evidentiary imbalance, known in some settings as the ‘employer’s monopoly on knowledge,’ is compounded when discrimination stems from unconscious bias or systemic practices.

Case Study — Proving sex discrimination in practice

In Tsikos v Austin Health [2020] VCAT 1387, a senior doctor alleged discrimination based on sex and age. The Tribunal initially dismissed her claim due to insufficient evidence. On appeal, the court found systemic sex discrimination. The case underscores how power and access to evidence are decisive and highlights the pivotal role of evidence in proving systemic issues, with the Court of Appeal upholding the Tribunal had failed to consider the broader context of unconscious bias and structural inequality. 7 In reaching this conclusion, the Court relied on internal workforce data provided by the complainant, which showed that all male employees in her department were classified at a level higher than required, and that one male subordinate was paid significantly more than her. This evidence was only made available due to the doctor’s seniority.

Information asymmetry compounding evidentiary imbalance

In Victoria, despite the removal of the comparator test from the Equal Opportunity Act 2010 (Vic), people with disability systematically fail to meet the evidentiary burden. Unlike the case of Tsikos highlighted above, people with disability experience information asymmetry that contributes to failing to provide evidence that would otherwise prove discrimination. Generally, information asymmetry manifests in the context of medical evidence, specifically the absence thereof, especially due to the significant financial cost involved in obtaining such evidence and/or the lack of formal diagnosis.

This evidentiary burden is particularly problematic in cases involving children with disability who lack a formal diagnosis at the time of the alleged conduct and is especially pronounced in educational settings, where behavioural issues are frequently addressed through punitive measures rather than a disability-inclusive approach. As a result, students whose disability manifests as so-called behavioural challenges are disproportionately subject to exclusionary practices, undermining substantive equality.

Amending the burden of proof so that it shifts to the respondent once a complainant demonstrates they were treated unfavourably would address these issues.

Indirect discrimination

7 Tsikos v Austin Health [2022] VSC 174 (11 April 2022) at [100] “Taking all of these matters together, I consider that it would have been open for the Tribunal to find that Ms Tsikos’ sex was a substantial reason why Austin Health had, between 2011 and 2018, failed or refused to negotiate over-agreement remuneration with her, and had not paid her at over-agreement rates. That inference could have been drawn from findings that were open on the evidence, including the uncontested opinion evidence about the presence in the Department of factors known to contribute to entrenched gender pay inequality in the broader workforce. On that basis, the proceeding should be remitted to the Tribunal to be heard and decided again.”

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(1) 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?

(2) 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, or; d) other?

ALHR RECOMMENDATIONS

1. Remove the “Unable to Comply” requirement from indirect discrimination.

2. Replace the ‘reasonableness’ test with a ‘legitimate and proportionate’ test, together with recommending provision of guidance, on what would, and would not be, considered legitimate and proportionate.

Why reform is needed

The

A legitimate and proportionate test

ALHR supports a move toward a ‘legitimate and proportionate’ test, modelled on section 19(d) of the UK Equality Act 2010, provides a more rigorous and structured framework. The framework:

a) requires respondents to demonstrate that a practice is a necessary and proportionate means of achieving a legitimate aim, with no less discriminatory alternative available b) encourages duty holders to critically assess their practices, and c) empowers complainants with a clearer understanding of their rights.

Learning from the Victorian Equal Opportunity Act 2010, which uses an extended list of factors under its ‘reasonableness’ test, has shown that while such factors can clarify obligations, vague language can distort the scope of protections. A clear ‘legitimate and proportionate’ test would provide greater certainty and ensure the justificatory element is applied with the necessary rigour.

Aligning with the Convention of the Rights of Persons with Disabilities

(1) Should the Disabilities Convention be included in the objects provision of the Disability Discrimination Act?

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

ALHR RECOMMENDATIONS

1. Include reference to the Convention on the Rights of Persons with Disabilities in sections 3 and 4 of the Disability Discrimination Act 1992 (Cth).

2. Include an express interpretative clause to ensure all administrative and judicial decision-makers interpret the Disability Discrimination Act 1992 (Cth) in a manner that promotes full compliance with the Convention on the Rights of Persons with Disabilities (CRPD). This clause should specify that international human rights law, including but not limited to treaties and conventions and the judgments of domestic, foreign and international courts and tribunals and treaty monitoring bodies relevant to a human right may be considered in interpreting the DDA’s statutory provisions.

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Why reform is needed

ALHR supports an object being included in the objects provision of the DDA and particularly supports the object ensuring future developments in international human rights law are reflected in interpreting the DDA.

As a signatory to the CRPD, Australia is obligated to realise the rights it enshrines. However, international law is not automatically enforceable domestically. While courts may consider it, most DDA matters are resolved through administrative processes where decision-makers are not required to apply a human rights lens, increasing the risk of inconsistent or discriminatory outcomes.

An explicit interpretive clause would ensure all decision-makers are guided by Australia’s international human rights obligations. This would:

a) strengthen the DDA as a proactive, rights-based framework b) promote substantive equality, and c) ensure that evolving international standards and interpretation inform the Act’s application.

Such a reform mirrors the approach taken in Victoria’s Charter of Human Rights and Responsibilities Act (2006), the Australian Capital Territory’s Human Rights Act (2004) and Queensland’s Human Rights Act (2019) which oblige public entities to act compatibly with individual’s human rights in decision-making. This has led to more equitable outcomes that respect individual autonomy, as demonstrated in cases such as the Supreme Court of Victoria’s decision in PBU & NJE v Mental Health Tribunal [2020] VSC 564.

This approach in jurisdictions that have enacted Human Rights Acts has also led to:

a) improved legislative, policy, regulatory and service design, particularly for disadvantaged groups; b) fostering a more robust, accountable and human rights-based decision-making culture across parliaments, the executive and the courts; and c) mitigating organisational risks, such as litigation, by embedding human rights at the front end of the everyday work of government and its institutions.

2. Part 2 of the Act

Positive duty

(1) If there was a positive duty in the Disability Discrimination Act, who should it apply to?

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(2) 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?

(3) 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.

(4) Should there be exceptions or limits to the application of a positive duty?

ALHR RECOMMENDATION:

1. Introduce a positive duty in the Disability Discrimination Act 1992 (Cth) requiring all duty holders to take reasonable and proportionate measures to prevent not only discrimination, but also harassment, victimisation and non-compliance with disability standards. The duty should:

   a) apply to all duty holders under the DDA, including Commonwealth entities as defined under the Public Governance, Performance and Accountability Act 2013 (Cth), and public authorities such as ministers, public servants, and government contractors

   b) be drafted in clear, accessible language that provides legal certainty for duty holders and individuals

   c) include an obligation for duty holders to actively work with people with disability and their representative organisations

   d) be supported by enforceable regulatory powers, including monitoring, compliance notices and public reporting by the Australian Human Rights Commission (AHRC), and

   e) be guided by the principle of reasonable and proportionate measures consistent with comparative models under the Sex Discrimination Act 1984 (Cth), the Equal Opportunity Act 2010 (Vic) and the Discrimination Act 1991 (ACT).

The case for reform

ALHR strongly supports the introduction of a positive duty under the DDA, consistent with the recommendations of the Disability Royal Commission, and as extended on by the Australian Discrimination Law Experts Group’s (ADLEG) submission to this review.

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The current complaints-based model places the burden of enforcement on people with disability to identify, prove and challenge discriminatory conduct after harm has occurred. This model has proven inadequate to drive systemic change or build organisational capability to prevent discrimination and work towards greater inclusion.

A positive duty would shift the framework from reactive redress to proactive prevention, embedding equality as a core operational responsibility of all duty holders. It would move away from reliance on individual complaints—which often fails to detect systemic discrimination—and instead proactively embeds compliance into processes. A positive duty will also help identify and address unseen or systemic barriers before they cause harm.

Scope and nature of the duty

ALHR endorses ADLEG’s proposal for a comprehensive duty covering all areas of activity under the DDA, including compliance with the Disability Standards.

The duty should require organisations to take proactive steps to prevent all forms of unlawful conduct, discrimination, harassment and victimisation, and to remove structural barriers to equality. It should apply across all sectors and contexts, including employment, services, accommodation, education, and the exercise of public powers.

To be effective, the duty must be framed clearly and accompanied by authoritative guidance that specifies matters to be considered in compliance assessments.

Consultation and co-design

Consistent with Article 4(3) of the CRPD and the principle of nothing about us without us, ALHR supports embedding a requirement to actively work with people with disability and their representative organisations in the development, implementation and monitoring of compliance strategies.

Meaningful consultation and co-design are critical to ensuring the duty delivers real-world prevention and inclusion for people with disability.

Enforcement and accountability

We submit that a positive duty must be enforceable to have practical effect. The AHRC should be resourced and empowered to:

a) monitor and investigate systemic non-compliance b) receive reports of non-compliance from individuals and representative organisation c) issue compliance notices d) publish compliance findings and maintain a public register of enforcement activities, and

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e) report annually on enforcement outcomes and emerging systemic trends.

These mechanisms would ensure the positive duty operates as a credible, outcome-oriented regulatory tool.

Benefits of a positive duty

The introduction of a positive duty would deliver substantial human rights and economic benefits. It would:

a) prevent discrimination before harm occurs, reducing complaints and litigation b) promote inclusive and accessible services, workplaces, and institutions, and c) build organisational capability and accountability across sectors.

As ADLEG’s submission observes, the cost of inaction is borne overwhelmingly by people with disability, through exclusion from employment, services and participation. Embedding prevention as a legal duty would rebalance responsibility and deliver long-term social and economic gains.

Exceptions and proportionality

The only limits on the duty should be those inherent in the reasonable and proportionate measures test. No broad exemptions should apply. Proportionality should take account of organisational size, resource and context, without undermining the duty’s purpose or enforceability.

3. Part 3 of the Act

Adjustments

(1) 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?

(2) 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?

(3) Would removing the word ‘reasonable’ from the term ‘reasonable adjustments’ to align language with the legal effect create any unintended consequences?

ALHR RECOMMENDATION

1. Amend the Disability Discrimination Act 1992 (Cth) to:

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a) Create a clear, stand-alone duty to provide adjustments, with failure to provide an adjustment continuing to constitute unlawful discrimination.

b) Replace the term “reasonable adjustments” with “adjustments” throughout the DDA and related instruments, with notes updated to reflect the scope of the obligation.

c) Clarify that duty holders have the primary responsibility to identify, design, implement and review adjustments in consultation and co-design with the person with disability and, where appropriate, with their chosen supporters and representative organisations.

d) Provide clear statutory guidance on compliance, including factors for assessing what constitutes appropriate adjustments, the requirement to act without undue delay, and record-keeping.

e) Align the stand-alone adjustments duty with the proposed positive duty to eliminate discrimination, ensuring integration between individual accommodations and system-level prevention.

Why reform is needed

Experience under the current framework shows that embedding adjustments within direct and indirect discrimination tests has not created a predictable, positive obligation. Courts have often treated adjustments as discretionary or placed an unrealistic burden on individuals to specify the precise form of the accommodation, despite information and implementation capacity resting with duty holders. 8 This undermines equal participation and drives avoidable conflict and complaints.

A stand-alone duty will provide clarity for people with disability and for duty holders. It sets a clear legal baseline: adjustments must be provided unless doing so would involve unjustifiable hardship, with that assessment guided by objective factors and transparent reasoning.

Removing “reasonable”

ALHR supports the Disability Royal Commission’s recommendations and ADLEG’s position that removing the qualifier “reasonable” improves clarity and practice. The term has fuelled confusion and inconsistent application. Using “adjustments” focuses attention on the substantive question: what changes are required to remove barriers so the person can participate on an equal basis with others, subject to the statutory hardship limit.

8 EIX20 v State of Western Australia [2022] FCA 1357; Izzo v State of Victoria (Department of Education and Training) [2020] FCA 770; Connor v State of Queensland (Department of Education and Training) (No 3) [2020] FCA 455; Varasdi v State of Victoria [2018] FCA 1655.

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Clarifying responsibility

The legislation should confirm that duty holders have the primary responsibility to identify and implement adjustments in genuine partnership with the person with disability. This means:

a) engaging early and meaningfully with the person (and, where relevant, their representative or support person) to understand barriers, preferences and effective solutions b) recognising the person’s experience and perspective as expert evidence about what enables participation c) exploring and proposing workable adjustments collaboratively, drawing on organisational and technical expertise to complement, not override, the person’s insight d) documenting options considered and reasons for decisions, including how the person’s views informed the outcome, and e) implementing adjustments without undue delay and reviewing them as circumstances change.

This approach embeds the principle of participation and co-design consistent with Article 4(3) of the CRPD while recognising that organisations hold the resources, authority and systems needed to make inclusion real, balancing accountability with agency, ensuring that the person with disability is neither burdened with proving what is possible nor excluded from shaping the supports that affect them.

Clear statutory guidance and timeliness

To support certainty and compliance, the DDA should set out:

a) assessment factors, including effectiveness for the individual, timeliness, integration with existing systems, and impacts on others b) a requirement to avoid undue delay, with inaction or prolonged indecision recognised as non-compliance, and c) expectations for consultation, record-keeping and periodic review.

The Australian Human Rights Commission should be resourced to issue authoritative guidance and templates that reflect these requirements.

Integration with the positive duty

The stand-alone adjustments duty should operate alongside the proposed positive duty. Together, they ensure both individual accommodations and proactive system-level measures to remove barriers. This alignment encourages organisations to embed inclusive design, policy and practice, and reduces reliance on after-the-fact reto-fits or complaints.

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Unjustifiable hardship

(1) 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?

ALHR RECOMMENDATIONS

1. Implement Disability Royal Commission Recommendation 4.32 by adding explicit factors to section 11 requiring consideration of the extent of consultation with the person with disability and of alternative measures to remove or reduce hardship.

2. Reframe section 11 to reflect proportionality and transparency, drawing on section 4.1 of the Disability (Access to Premises — Buildings) Standards 2010, including public funding, community function, resources reasonably available, benefits to people with disability and the broader community, and evidence of genuine consultation with disability representative organisations.

3. Require duty holders who rely on unjustifiable hardship to document factors considered, reasons, and alternatives assessed, and to provide this on request to the person affected, the AHRC and/or a court.

Why reform is needed

In practice, unjustifiable hardship is too often used as a gatekeeping device that shifts costs from duty holders to people with disability, their families, kin and carers, and the public, rather than eliminating costs. Courts have focused on immediate organisational expense rather than proportionality, alternatives, or the broader economic and social costs of exclusion. 9 This undermines the DDA’s purpose and Australia’s obligations under the CRPD.

Reforming the test in section 11

We support the Disability Royal Commission’s recommendations, built on by ADLEG, to amend section 11 to require decision-makers to consider, at a minimum:

a) the extent of consultation with the person with disability b) alternative options reasonably available to remove or reduce hardship c) the extent to which the duty holder’s operations are publicly funded or perform a public or community function

9 King v Jetstar Airways Pty Ltd [2012] FCAFC 115; Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436; Gordon v St Vincent Hospital Sydney Ltd [2023] FCA 1188. See also: Alice Taylor, Interpreting Discrimination Law Creatively (Hart Publishing, 2023) 141–3.

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d) financial, staffing, technical, information and other resources reasonably available, including grants and subsidies e) the benefits of implementing the measure for people with disability and the broader community, and f) whether they have made genuine efforts to eliminate discrimination, including consultation with disability experts and representative organisations.

These factors provide clearer guidance, improve legal certainty, and ensure a proportionate assessment that recognises the real costs of exclusion.

We note in particular that the additional factor of “benefits of implementing the measure for people with disability and the broader community” is needed to address past cases where Courts have imported stereotypes that frame inclusion as a burden on others.

Decision-makers should assess detriment in proportion to the human right engaged and by reference to evidence, noting that inclusive practice benefits whole communities.

Transparency and reasons

To promote accountability and effective review, we recommend inserting new provisions requiring that any party seeking to rely on unjustifiable hardship must:

• set out in writing the factors considered under section 11
• document evidence of consultation with the person affected
• document consideration of all viable alternatives to avoid or minimise hardship
• provide reasons for the decision, and
• on request, provide this documentation to the person affected, the Commission and/or a court.

Failure to comply should be expressly relevant to whether the burden of establishing unjustifiable hardship has been discharged.

Integration with the positive duty and adjustments duty

Reformed unjustifiable hardship must be read alongside the proposed positive duty and the stand-alone duty to provide adjustments. Together, these provisions require both individual accommodations and systemic, preventative measures. They also ensure that unjustifiable hardship cannot be used to excuse inaction where reasonable, staged steps toward inclusion are available.

Inherent requirements

(1) 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 and current employees before making employment decisions?

(2) Are there other amendments to the Disability Discrimination Act that could support engagement between prospective or current employers and prospective or current employees to better understand the inherent requirements of a job?

(3) Should any other amendments be made to the definition of inherent requirements, including factors that should be considered when deciding whether a person could carry out the inherent requirements of a job?

ALHR RECOMMENDATIONS

1. Amend section 21A of the Disability Discrimination Act 1992 (Cth) to:

   • d) define “inherent requirements” as those that are necessary to the fundamental nature of the employment or educational program and incapable of being eliminated or modified without fundamentally altering that nature
   • e) clarify that inherent requirements must be distinguished from marginal, peripheral or traditional practices that can be modified, and
   • f) require duty holders to consider all possible adjustments and to consult with the person with disability before determining that inherent requirements cannot be met.

2. Insert an express provision placing the burden of proof on the duty holder to demonstrate, with credible evidence, that the requirement is genuinely inherent.

3. Amend section 21A(2) to require decision-makers to consider:

   • c) the nature and extent of adjustments that have been or could reasonably be made, and
   • d) the extent of consultation with the person with disability.

4. Task the Australian Human Rights Commission, in partnership with relevant regulators and professional accreditation authorities, to issue guidance on compliance with section 21A and to review the use of “inherent requirement statements” across employment, education and accreditation contexts.

5. Make clear that work health and safety concerns must be addressed separately from the inherent requirements exception and cannot be used to broaden its scope.

Why reform is needed

The “inherent requirements” exception under section 21A is intended to be a narrow limitation that recognises genuine situations where a person cannot perform the essential functions of a job or course, even with adjustments. However, as identified by the Disability Royal Commission and ADLEG’s submission, this exception is routinely misapplied.

Courts and duty holders often treat preferences, traditional practices or unexamined conventions as “inherent”, rather than asking whether a requirement is truly essential to the fundamental nature of the role or course.

Decision-makers frequently reverse the proper analytical sequence, concluding a person cannot meet inherent requirements before meaningfully exploring what adjustments could enable them to do so. This approach entrenches exclusion and undermines the DDA’s objectives.

Assertions about “inherent requirements” are often unsupported by evidence. In practice, they may rest on assumptions about disability or circular reasoning that equates unadjusted systems with inherent characteristics. For example, safety procedures or operational models that have not been adapted for people with disability are sometimes treated as immovable requirements, effectively substituting organisational convenience for legal necessity.

Narrow definition and burden of proof

ALHR endorses and supports ADLEG’s proposed test that inherent requirements must be:

• necessary to the fundamental nature of the employment or educational program
• incapable of being eliminated or modified without fundamentally altering that nature, and
• distinct from marginal or traditional practices that can be modified.

Employers, education providers and accreditation bodies should bear the burden of proving that a requirement is genuinely inherent. This must be supported by:

• detailed analysis of the role or course to identify its core functions
• evidence explaining why each claimed requirement is essential
• documentation of the consequences of not performing the specific requirement
• an analysis of how technology, job redesign or alternative methods could eliminate the barrier, and
• evidence of consultation with the person with disability about how adjustments could enable them to meet the requirement.

Courts should require rigorous proof — assertions or general statements should not suffice.

Analytical sequence and separation from safety

The legislation should further clarify the proper sequence of decision-making by:

1. identifying the inherent requirements of the role or course
2. identifying all possible adjustments that could enable the person to meet those requirements
3. considering what resources and supports are available to implement adjustments, and only then
4. determine whether the person can meet the inherent requirements with or without those adjustments.

Safety or risk management concerns must be considered separately from the question of what is “inherent.” Work health and safety obligations cannot justify inflating the scope of the inherent requirements exception.

Application in professional education and accreditation

Although section 21A primarily addresses employment, its reach extends to education and accreditation bodies through subsection 21A(3)(e). Many universities and professional regulators have adopted “inherent requirement statements” that reflect employment-based assumptions rather than genuine learning outcomes.

These statements often describe physical or behavioural capacities as prerequisites for participation, excluding students who could otherwise meet course outcomes with appropriate adjustments. To prevent these statements from functioning as gatekeeping tools, ALHR supports amending section 21A(2) to require explicit consideration of:

• the nature and extent of adjustments that have been or could reasonably be made, and
• the extent of consultation with the person with disability.

The AHRC, in partnership with the relevant regulatory and professional accreditation bodies, should be tasked with reviewing inherent requirement statements to ensure compliance with the DDA, remove exclusionary criteria, and promote enabling, competency-focused standards.

Alignment with human rights obligations

A reformed approach to inherent requirements is essential to bring the DDA into alignment with the CRPD. Exceptions must be interpreted strictly and operate only after genuine efforts to identify and implement adjustments have been exhausted. Its function is to preserve legitimate, essential tasks; not to entrench structural or attitudinal barriers to participation.

(1) Should the concepts of exclusion and exclusionary discipline be defined in the Disability Discrimination Act?

(2) Should there be exceptions or limits on when exclusion is unlawful?

(3) Should any of the state and territory provisions relating to exclusionary discipline be adopted in the Disability Discrimination Act?

(4) Would a different approach to exclusionary discipline be more appropriate in the higher education and vocational education and training sectors?

ALHR RECOMMENDATIONS

1. Amend section 22(2) of the Disability Discrimination Act 1992 (Cth) to replace “by expelling the student” with “by subjecting the student to exclusionary discipline.”

2. Insert a definition of exclusionary discipline in the DDA as “actions by an educational authority or institution that result in the withdrawal or denial of education or training from a student with disability, including suspensions, expulsions, informal or undocumented removals (including ‘take-home’ requests), enforced part-time attendance, cancellation of enrolment in early childhood education and care.”

3. Insert into section 22 an explicit requirement that, before imposing exclusionary discipline, the duty holder must consider and document:

   • d) whether the relevant conduct or behaviour is a symptom or manifestation of disability
   • e) whether the duty to provide adjustments has been met, and
   • f) whether the positive duty to prevent discrimination and promote equality has been met, including the use of trauma-informed, de-escalation and supports.

4. Require written reasons and review: any exclusionary decision must be documented with reasons, evidence of consultation, adjustments considered and implemented, and a review date.

5. Task the Australian Human Rights Commission, with state and territory education regulators, to issue authoritative guidance on compliant practice, data collection and public reporting of exclusionary incidents involving students with disability.

The problem to be fixed

Exclusionary discipline denies students with disability their right to education and perpetuates systemic discrimination. This is contrary to Australia’s obligations under Article 24 of the CRPD, Article 28 of the Convention on the Rights of the Child (CRC) and Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Evidence to the Disability Royal Commission showed inappropriate and disproportionate use of suspension and exclusion, including for First Nations students with disability.

These practices disrupt learning and social development, increase disengagement and justice-system contact, and are often applied before adjustments or trauma-informed supports are in place. Often, it leads to social exclusion resulting in further disability and power life outcomes.

Although these actions can fall within “other detriment” in section 22(2)(c), their informality and variability mean they evade scrutiny. An express prohibition and definition are required to close this gap, align with Article 24 of the CRPD, and drive consistent national practice.

Legislative approach

1. Replace the narrow “expulsion” wording
   Amend section 22(2) to capture the full spectrum of exclusionary practices, not only expulsion. This ensures informal removals, enforced part-time attendance, and similar practices are reviewable and unlawful when applied on the ground of disability or in breach of duties to adjust and prevent discrimination.

2. Define “exclusionary discipline” broadly
   The statutory definition provided above makes clear that form does not trump effect. If the outcome is the withdrawal or denial of education, it is captured.

3. Embed mandatory considerations and sequencing
   Insert provisions that require duty holders to consider and document, before any exclusionary steps:

   • a) whether the behaviour is a manifestation of disability
   • b) whether the student with disability has been consulted about their supports
   • c) whether all available and specific adjustments and supports were identified, trialled, and with what effect
   • d) the impact of exclusionary discipline on the best interests of the student with disability and their right to education
   • e) whether less restrictive alternatives exist
   • f) the impact of the student’s disability, needs, age, and the particular effects of exclusion data for young children, and

g) how the decision complies with the positive duty and the student’s rights under the DDA.

Further, there should be additional provisions that:

• places a duty on principals to report the repeated use of exclusionary discipline involving a student with disability to an escalation point within educational authorities for independent case management
• ensures students with disability have access to educational materials appropriate to their educational and behavioural needs while subject to exclusionary discipline
• ensure students with disability are supported to re-engage in education post-exclusion, and
• creates and retains documentation describing consultation and consideration, and
• ensures the student is provided with reasons for the decision to use exclusionary discipline.

4. Documentation, reasons and review
   There should also be a robust review and appeals process with supports for students with disability and their families, kin and/or carers. The process should require reasons and evidence of consultation with the student and their supporters. Any exclusionary action must be time-limited, with a review date and a plan to restore full participation.

Integration with adjustments and the positive duty

This reform operates alongside the stand-alone duty to provide adjustments and the positive duty. Together, they require schools and early childhood education and care services to implement supports that prevent escalation and avoid exclusion. Exclusionary discipline cannot excuse failures to meet those duties.

Implementation and accountability

The AHRC, with education regulators, should issue practical and authoritative guidance, including indicators, templates for reasons, and model behaviour-support workflows that prioritise adjustments and trauma-informed practice.

4. Part 4 of the Act

Offensive behaviour

(1) How could the Disability Discrimination Act be amended to protect people with disability from offensive behaviour and/or harassment?

(2) If the Disability Discrimination Act were to prohibit offensive behaviour and/or harassment, how should these terms be defined?

(3) Should there be exemptions for any behaviour, like the Racial Discrimination Act?

ALHR RECOMMENDATIONS

1. Amend the Disability Discrimination Act 1992 (Cth) to include a robust general prohibition on conduct that humiliates, intimidates, insults, offends, ridicules or demeans people with disability.

2. Base the general prohibition on section 18C of the Racial Discrimination Act 1975 (Cth) (RDA), and section 22 of Anti-Discrimination Act 1998 (Tas), and tailor it to the lived experiences of people with disability and include explicit reference to, but not limited to, interference with mobility, communication, and disability aids/equipment.

Why reform is needed

Current harassment protections in the DDA are fragmented, narrow in scope, and fail to reflect the full range of discriminatory conduct experienced by people with disability. Harassment is only prohibited in limited contexts: employment (section 35), education (section 37), and goods and services (section 39); and requires conduct that is “persistent and harrying”. This threshold excludes serious one-off incidents and fails to account for the cumulative impact of repeated prejudice from different sources.

A general prohibition on conduct that is likely, in all circumstances, humiliates, intimidates, insults, offends, ridicules or demeans people with disability. Such a prohibition would:

• provide clarity and improve legal literacy for individuals and duty holders
• ensure that public acts of disability-based harassment are unlawful, upholding the right to participate in public life under Article 30 of the CRPD, and
• capture the full spectrum of discriminatory and ableist behaviour, including ridicule and interference with aids, which are central to the everyday discrimination faced by people with disability.

Legislative approach

1. Prohibition of discriminatory public conduct

Unlike section 18C of the RDA, which applies only to conduct “otherwise than in private,” the DDA must explicitly prohibit discriminatory conduct in public. Offensive behaviour has a chilling effect on participation, leading people with disability to apprehend discrimination, avoiding public life and reinforce social exclusion.

ALHR recommends adopting language similar to section 22 of the Anti-Discrimination Act 1998 (Tas), which prohibits conduct “by or against” a person “in connection with” activities, including but not limited to employment, education, accommodation, and public services. This framing ensures that protections apply regardless of the perpetrator’s role and captures the reality that discrimination often occurs in shared spaces and interactions.

2. Broad coverage is necessary

We endorse the suite of recommendations by ADLEG, and recommend the general prohibition reflects the lived experience of people with disability by:

• a) expanding the scope to include ridicule, derogatory and demeaning conduct, and interference with mobility, communication, and disability aids/equipment
• b) ensuring broad coverage of protected relationships and contexts, including conduct by or against third parties in connection with employment, education, services, accommodation, and other public domains, and
• c) including public acts within the scope of the DDA, recognising the significant impact of disability prejudice in public spaces.

These reforms are essential to modernising the DDA, improve legal clarity, and ensure that people with disability are protected from discrimination in all areas of life.

Vilification

(1) Given the recent legislative developments, are there any further gaps in the legislative framework that could be addressed by amendments to the Disability Discrimination Act to protect people with disability from vilification?

ALHR RECOMMENDATIONS

1. Include specific protections against vilification of people with disability in the Disability Discrimination Act 1992 (Cth) modelled on section 19(b) of the Anti-Discrimination Act 1998 (Tas).

2. Extend the protection provided under section 18C of the Racial Discrimination Act to other protected attributes, including disability, with appropriate safeguards to ensure proportionality and contextual assessment of harm.

Why reform is needed

Significant gaps in the current legislative framework leave people with disability vulnerable to public acts of hate, ridicule, and contempt. Public vilification is ongoing and persistent and includes high-profile examples such as Prue MacSween’s on-air comments suggesting children with disability should not be in classrooms with “normal” children, and the conflation of disability and fraud in the National Disability Insurance Scheme contributing to backlash against people with disability and the supports they rely on.

Legislative approach

ALHR endorses Recommendation 4.1.4 of the ADLEG submission.

1. The Tasmanian example

We recommend the DDA be amended to include a provision modelled on section 19(b) of the Anti-Discrimination Act 1998 (Tas). That provision makes it unlawful for a person, by a public act, to incite hatred, severe contempt, or severe ridicule of a person or group on the basis of disability.

The Tasmanian provision has already proven effective, including in the successful complaint against MacSween, which resulted in a public apology. Introducing a similar provision in the DDA is essential to:

• a) provide a clear legal remedy for public acts that incite hatred or severe ridicule
• b) combat stigma and the harmful conflation of disability with behaviour that undermines societal disability inclusion, particularly in contexts like fraud in the NDIS, and
• c) align the DDA with the level of protection afforded against racial vilification, ensuring parity across protected attributes.

3. Extension of protections to other protected attributes

ALHR supports consideration of whether vilification should be characterised as an offence under Part 2, Division 4 of the DDA. We also support broader reform to extend protections provided under section 18C of the Racial Discrimination Act 1975 (Cth) to other protected attributes, including disability.

While this provision balances freedom of speech with protection from vilification, ALHR submits that similar protections should be available to people with disability.

4. Context central to assessing seriousness of harm

ALHR support an approach that is context-sensitive and considers the seriousness of harm caused, but in assessing harm, the approach should consider historical and systemic discrimination experienced by people with disability, which amplifies the impact of vilifying conduct.

Services provided by police officers

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

(2) Are there any specific circumstances or situations relating to policing or justice that should be excluded from the application of the Disability Discrimination Act?

ALHR RECOMMENDATIONS

1. Amend the Disability Discrimination Act 1992 (Cth) to cover all aspects of public life, including policing and justice.

2. Preclude 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.

Why reform is needed

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

People with disability are systematically discriminated against by police officers, especially those with intellectual and/or psychosocial disability, and therefore are disproportionately over-represented in closed settings such as forensic systems and correctional centres across Australia.

Discriminatory behaviour by police officers, especially those with psychosocial disability experiencing mental health crises, have been heavily scrutinised. For example, a 2023 NSW parliamentary inquiry noted police officers inadvertently criminalised mental health-related challenges, leading to escalation that has been “harmful in a significant number of cases”,10 including multiple deaths, most recently Mr Colin Curling in Sydney in July 2025.

Such violence reduces trust among people with disability in police forces across Australia.

10 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

5. Part 5 of the Act

Exemptions

(1) Could any of the permanent exemptions be narrowed or updated, while balancing other policy considerations?

(2) Should a definition for temporary exemptions be added to the Disability Discrimination Act?

(3) Should a definition for temporary exemptions be added to the Disability Discrimination Act?

(4) Would you recommend any changes to the legislative process of granting temporary exemptions?

ALHR RECOMMENDATIONS

1. Amend section 52 of the Disability Discrimination Act 1992 (Cth) such that the extent of discrimination it renders legally permissible is narrowed while still balancing the policy consideration of reasonable and necessary measures to protect public health by containing infectious diseases.

2. Review and remove:

   1. Australia’s interpretative declaration on Article 18 of the Convention on the Rights of Persons with Disabilities;11 and
   2. all formalities and procedures relating to migration and asylum, in order to ensure compliance with Australia’s obligations under:
      • the Convention on the Rights of Persons with Disabilities
      • the Convention on the Rights of the Child
      • the remaining core United Nations human rights treaties to which Australia is a State Party.

3. Review all other exemptions in the Disability Discrimination Act 1992 (Cth) currently in light of Australia’s obligations under the Convention of the Rights of Persons with Disabilities and amend accordingly to ensure obligations are not undermined by the framing of permanent exemptions.

11 Australia, Interpretative Declaration to the Convention on the Rights of Persons with Disabilities, signed 17 July 2008, [2008] ATNIF 15, [2008] ATS 12 (entered into force 16 August 2008).

4. Amend the Disability Discrimination Act 1992 (Cth) to provide more oversight powers and evaluation of temporary exemptions and special measures.

Why reform is needed

Together with Down Syndrome Australia, ALHR leads Welcoming Disability, a joint civil society campaign launched in 2020 and supported by over one hundred (100) organisations and experts. The Campaign seeks reform of Australia’s migration health laws and policies to remove their discriminatory impact on people with disability and health conditions.

ALHR refers to and endorses the separate submission and seven (7) recommendations lodged with this Review on behalf of Welcoming Disability. That submission and its recommendations have been endorsed by eighty-nine (98) organisations and experts.

ALHR notes that these recommendations reflect support for the implementation of Recommendation 4.31 of the Disability Royal Commission in relation to section 52 of the DDA.

Australia’s migration laws discriminate against people with a disability or a health issue applying to enter Australia. This discrimination is rendered legal under Australia’s domestic legislation by virtue of the exemption of the Migration Act 1958 (Cth) from the scope of the Disability Discrimination Act 1992 (Cth). Consequently, the Australian government is treating people who have a disability or a health issue differently from other prospective migrants.

The effect of section 52 as currently drafted is to exempt the Migration Act 1958 (Cth) from the scope of the DDA is what ALHR submits is an overbroad way, leading to a Migration Health Requirement (MHR) within the *Migration Regulations 1994 (Cth)*12 (Migration Regulations) that permits disproportionate, unreasonable and unjust discrimination against people with disability.

As currently drafted, section 52 fails to differentiate between proportionate and reasonable measures designed to protect public health and safety (such as the containment of infectious diseases) and disproportionately discriminatory regulations that arbitrarily frame people with disability as a net burden on the Australian community.

It is a core principle of international human rights law that any interference with a human right - including the right to freedom from discrimination on the basis of disability - must have a legitimate aim. That is, the interference or restriction must be proportionate and necessary (the principle of proportionality).

12 Schedule 4 to the Migration Regulations 1994 (Cth) https://www.legislation.gov.au/Details/F2017C01164

The current overbroad and disproportionate scope of section 52 reinforces the stigma and discrimination that people with disability and health conditions already face. It is archaic and degrading. Australia’s laws should not be premised on inherent, arbitrary assumptions that discrimination against people with disability or health conditions, and their families, is legally permissible because they are necessarily a net burden to Australian society, rather than a net asset to our communities, schools and workplaces.

Australia’s Migration Health framework should be consistent with its obligations under the core United Nations human rights treaties to which it is a party, including the Convention on the Rights of Persons with Disabilities (CRPD)13 and the Convention on the Rights of the Child14 (CRC).

DDA’s core purpose is to eliminate discrimination, yet permanent exemptions create sanctioned loopholes that permit it. Many of these exemptions were framed before Australia ratified the Convention on the Rights of Persons with Disabilities (CRPD), which obligates proactive measures to ensure full equality. A review is critical to test each exemption against modern CRPD standards, ensuring that no provision permanently undermines the rights of people with disability by upholding outdated assumptions or unjustifiable barriers to inclusion.

Furthermore, the system for temporary exemptions and special measures requires enhanced oversight and evaluation to prevent these mechanisms from being misused or becoming ineffective. Temporary exemptions, intended as a narrow concession for transition, risk becoming de facto permanent without robust scrutiny, and risk perpetuating discrimination rather than remedying it. Similarly, while special measures are vital for advancing equality, they must be effectively evaluated to ensure they are genuinely beneficial and do not have unintended consequences.

Strengthening oversight introduces essential accountability and ensures any departure from the DDA’s norms is strictly justified, time-bound, and progresses towards the ultimate goal of full inclusion, and complement the proposed shift towards a proactive positive duty.

6. Part 6 of the Act

Assistance animals

(1) How could 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?

(2) What would legislative amendments or guidance materials be helpful to balance flexibility and certainty, or a mixture of both?

(3) Should specific training organisations be prescribed under Disability Discrimination Regulations?

ALHR RECOMMENDATIONS

1. Amend the Disability Discrimination Act 1992 (Cth) to clearly specify that assistance animals must be under the control of their handler and meet defined hygiene and behaviour standards in public spaces.

2. Develop and publish complementary practical guidance materials to assist individuals and duty holders in understanding their rights and responsibilities.

3. Prescribe specific training organisations that meet international best practice standards (e.g., those accredited by the International Guide Dogs Federation), and establish a national framework for assistance animals under the Disability Discrimination Regulations.

Why reform is needed

The current provisions in section 9 of the DDA, while inclusive in scope, lack sufficient detail and have led to confusion and inconsistent application across jurisdictions. In the absence of a nationally consistent accreditation framework, individuals in states and territories without formal schemes are left to rely on vague and difficult-to-evidence standards.

This uncertainty affects both people with disability and duty holders, who must balance anti-discrimination obligations with public safety and operational requirements. The result is a fragmented system that undermines the rights of people with disability, creates barriers to access in public spaces, employment, and services, and places an unfair evidentiary burden on individuals to prove their animal is adequately trained.

A dual approach: legislation and guidance

ALHR supports amending the DDA to clearly specify that assistance animals must be under the control of their handler in public spaces and meet defined hygiene and behaviour standards. These standards should be developed in consultation with people with disability and reflect international best practice, such as those used by the International Guide Dogs Federation (IGDF).

Legislative changes must be supported by the development of practical guidance materials to assist both individuals and duty holders in understanding their rights and responsibilities. These materials should include examples of:

• acceptable evidence of training and hygiene, accreditation processes, and
• clarification of the distinction between assistance animals and companion or emotional support animals.

This dual approach, combining legislative certainty with practical flexibility, would support legal compliance, reduce the risk of discrimination, and improve public confidence in the system.

Prescription of training organisations

ALHR also supports the prescription of specific training organisations under the Disability Discrimination Regulations. Several Australian organisations already meet international standards, including those accredited by the IGDF. Listing these organisations in the regulations would provide immediate legitimacy to their programs, set a benchmark for others, and assist duty holders in making informed decisions about access and safety. It would also reduce the evidentiary burden on individuals with disability.

In line with this dual approach, ALHR also supports the establishment of a national framework for assistance animals. The framework should include:

• mechanisms for assessing animals not trained by formal organisations
• ensure equitable access to accreditation for all people with disability
• provide for regular review processes, hygiene and behaviour standards, and
• provide clear pathways for demonstrating compliance.

Disability action plans

(1) Should there be minimum requirements for action plans (such as thought guidelines) and what should the minimum requirements cover?

(2) Should the Australian Human Rights Commission be able to reject action plans that fail to meet these requirements?

(3) Should there be a set period of time which an action plan is valid?

(4) Are there any changes to the action plan process that you would recommend?

ALHR RECOMMENDATION

1. Include additional mandatory requirements to ensure a certain standard for Disability Action Plans by:

(a) setting out a timeline for periodical audits and reviews, with appropriate amendments made to the plan (b) requiring organisations to co-design the development of action plans with people with disability (c) requiring organisations to embed a clear role for people with disability, defined by people with disability, in the implementation, governance and oversight, including reporting, of action plans, and (d) ensuring accessible mechanisms exist to facilitate feedback from people with disability.

Lifting the standard of Disability Action Plans

Currently, a voluntary approach has been the sole focus of the DDA, with section 61 outlining minimum requirements for action plans. The minimum requirements have been unable to achieve substantive progress because of the voluntary nature of the plans, with inconsistency across action plans driving piecemeal and imperfect approaches that are detached from each other.

Disability Action Plans, with appropriate amendments to the DDA, have the potential to be an important mechanism to drive systemic changes within organisations and across society, but the minimum requirements need to include the following additional requirements:

• set out a timeline for periodical audits and reviews, with appropriate amendments made to the plan
• require organisations to co-design the development of action plans with people with disability
• require organisations to embed a clear role for people with disability, defined by people with disability, in the implementation, governance and oversight, including reporting, of action plans, and
• accessible mechanisms exist to facilitate feedback from people with disability.

Relationship with positive duty

Further, Disability Action Plans have a role in determining whether a duty holder is meeting the proposed positive duty outlined earlier in our submission. The absence of a plan and/or reporting against an existing plan should be considered as failure to fulfill the proposed positive duty.

Disability standards

(1) How could compliance with and enforcement of the Disability Standards be improved?

(2) 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?

(3) Could the Australian Human Rights Commission provide additional guidance to duty holders regarding how to self-report on the Disability Standards in disability action plans?

ALHR RECOMMENDATIONS

1. Conduct 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.

2. Expand the 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.

Expanding and reviewing existing 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, and ALHR supports this view.

To address this, ALHR endorses ADLEG’s Recommendations 6.3.1 – 6.3.21 and supports the Australian Human Rights Commission’s recommendations 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. Additional standards should be introduced following consultation with Disability Representative Organisations.

7. A National Human Rights Act

ALHR RECOMMENDATION

1. Accompany the modernisation of the Disability Discrimination Act 1992 (Cth) with the introduction of a comprehensive federal Human Rights Act.

ALHR submits that essential reforms to the DDA will be significantly improved in their operation and effectiveness by the introduction of a federal Human Rights Act. As shown in Victoria, Queensland, and the Australian Capital Territory, jurisdictions that have enacted both discrimination laws and a Human Rights Act, the positive articulation and protection of human rights drawn from Australia’s international legal obligations improves the interpretation and operation of discrimination acts.The legal protection of human rights such as the right to equality before the law, the right to privacy, and the right to dignified treatment that can be included in determining whether a person has been discriminated against.

Further, the ‘dialogue model’ adopted in Australia’s sub-national Human Rights Acts can be used to challenge laws and regulations that are in themselves discriminatory. Conversely, reformed and modernised discrimination laws help with the operation of a Human Rights Act by complementing the rights outlined in an Act and ensuring that they must be enjoyed by all without discrimination. A modernised DDA and the enactment of a federal Human Rights Act is an essential step if Australia is to establish a legal framework that provides holistic, comprehensive and impactful protection from discrimination for people with disability.

Given Australia’s status as the only Western liberal democracy without a federal Human Rights Act or Bill of Rights, people with disability in many parts of Australia live with some of the least comprehensive human rights protections in the Western world.

The Disability Royal Commission recommendation of both positive rights and reforms to discrimination law are reflected in their recommendations,15 and whilst the Disability Royal Commission were unable to consider a Human Rights Act due to their terms of reference and instead recommended a Disability Rights Act16, the July 2024 joint statement of 12 disability representative organisations advocating for a Human Rights Act17 shows the support for the benefits of a Human Rights Act alongside reforms and modernisation of the Disability Discrimination Act.

The Parliamentary Joint Committee on Human Rights inquiry into Australia’s human rights framework reported on 30 May 2024 their recommendation for a Human Rights Act18, and that recommendation should be supported as part of the implementation of the Disability Royal Commission alongside reforming the Disability Discrimination Act.

15 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability: Final Report, Volume 4: Realising the human rights of people with disability, Commonwealth of Australia, Recommendations 4.01 - 4.34 16 Ibid, page 107 17 Strengthening protection of the rights of people with disability through a national Human Rights Act (HRA), Position Statement by Disability Representative Organisations (DROs), 19 July 2024, accessed at https://wwda.org.au/our-resources/publication/strengthening-protection-of-the-rights-of-people-with-disability-through-a-national-human-rights-act-hra/ 18 Inquiry into Australia’s human rights framework, Parliamentary Joint Committee on Human Rights, Commonwealth of Australia, May 2024, Recommendations 1 to 4

Conclusion

ALHR submits that the comprehensive modernisation of the Disability Discrimination Act 1992 (Cth) is urgently required to ensure it effectively protects people with disability from discrimination and promotes substantive equality. The recommendations outlined in this submission are designed to transform the DDA from a reactive, complaints-based model into a proactive, rights-enabling legislative framework.

The proposed reforms—including the introduction of a positive duty, a stand-alone duty to provide adjustments, a shifted burden of proof, and a detriment test for direct discrimination—are interconnected measures that will rebalance the responsibilities between individuals and duty holders.

Collectively, they address the profound power and information imbalances that currently prevent meritorious claims from succeeding and will drive systemic, preventative change across all sectors of society.

Crucially, these amendments will align the DDA with the social and human rights models of disability, as articulated in the CRPD, by focusing on the removal of societal barriers and the affirmation of the rights, agency, and dignity of people with disability.

The express recognition of intersectional discrimination, both internal and external, is a vital step towards ensuring the law reflects the complex realities of people’s lives and provides meaningful redress for the unique forms of prejudice they face.

Strengthening protections against harassment, vilification, and exclusionary discipline is equally essential to creating a society where people with disability can participate fully and without fear.

ALHR urges the Attorney-General’s Department to give serious and favourable consideration to these recommendations. The implementation of these reforms would represent a significant advancement in Australian anti-discrimination law, fostering a more inclusive, equitable, and just community for all people with disability.

ALHR is happy to provide any further information or clarification to assist the Department in this critical review process. If you would like to discuss any aspect of this submission, please email ALHR President redacted at: redacted.

Yours faithfully

redacted
President
Australian Lawyers for Human Rights

This submission was coordinated by redacted Senior Co-Chair, Disability Rights Committee, Australian Lawyers for Human Rights, with primary written contributions from redacted, and members of ALHR’s Disability Rights Committee redacted and redacted.

Any information provided in this submission is not intended to constitute legal advice, to be a comprehensive review of all developments in the law and practice, or to cover all aspects of the matters referred to. Readers should take their own legal advice before applying any information provided in this document to specific issues or situations.