Submission to the Review of the Disability Discrimination Act 1992

Submission

to the

Review of the Disability Discrimination Act 1992

The DDA creates little incentive for employers, schools, service providers and other duty-holders to take active measures to prevent disability discrimination. It should be amended to more effectively promote equality and enhance the right of people with disability to live free from discrimination.

Disability Royal Commission summary

November 2025

Table of Contents

1. How should disability be defined in the Disability Discrimination Act? | 13
2. What factors should be considered in developing a new definition of disability? | 13 Intersectionality – questions 3 and 4 | 17
3. Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes? | 17
4. 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? | 18 Meaning of discrimination – questions 5, 6, 7 and 8 | 18
5. What test should be used to ensure that the definition of direct discrimination is easy to understand and implement for both duty holders and people with disability, and why? | 18
6. How should the burden of proof be addressed in the Disability Discrimination Act? | 18
7. How could the definition of indirect discrimination be amended to ensure that it is easy to understand and implement for people with disability and duty holders? | 18
8. Should the reasonableness elements of 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. | 18

12. If there was a positive duty in the Disability Discrimination Act, who should it apply to? | 21
13. 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? | 21 Reporting and Action Plans | 21 Co-Design and Consultation | 22 Guidance Materials | 23 Enforcement and Oversight | 23 Transparency and Public Reporting | 23 Sanctions and Regulatory Tools | 24
14. 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. | 25
15. Should there be exceptions or limits to the application of a positive duty? | 26 Strengthening the duty to provide adjustments – questions 16 to 18 | 26
16. Would the creation of a stand-alone duty to provide adjustments better assist people with disability and duty holders to understand their rights and obligations? | 26
17. Should the scope of the duty to provide adjustments apply only to the existing areas of public life covered by the Disability Discrimination Act, or extend to other contexts? | 26
18. Would removing the word ‘reasonable’ from the term ‘reasonable adjustments’ to align the language with the legal effect create any unintended consequences? | 27 Identifying adjustments | 27 Adjustments and unjustifiable hardship | 27 Offensive behaviour and incitement – questions 27 to 30 | 28
19. How could the Disability Discrimination Act be amended to protect people with disability from offensive behaviour and/or harassment? | 28 The current harassment provisions in the DDA | 28 Why a provision based on section 18C of the RDA would be insufficient | 29 What conduct should be prohibited | 29 Where should conduct be prohibited | 29
20. If the Disability Discrimination Act were to prohibit offensive behaviour and/or harassment, how should these terms be defined? | 30
21. Should there be exemptions for any behaviour, similar to the Racial Discrimination Act? | 31
22. 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? | 31 Assistance Animals – questions 38 to 40 | 32
23. How could the protections for assistance animals be clarified for both people with disability and duty holders, including in relation to evidence of training, evidence or standards of hygiene and behaviour that are appropriate for a public place? | 32
24. Would legislative amendments or guidance materials be helpful to balance flexibility and certainty, or a mixture of both? | 36

40. Should specific training organisations be prescribed under the Disability Discrimination Regulations? | 36 — | — Disability Action Plans – questions 41 to 44 | 36
41. Should there be minimum requirements for action plans (such as through guidelines) and what should the minimum requirements cover? | 38 Action Plans and larger organisations | 38 Action Plans and smaller organisations | 39 Relationship of Action Plans to positive duties | 39 Scope of Action Plans | 39
42. Should the Australian Human Rights Commission be able to reject action plans that fail to meet these requirements? | 41
43. Should there be a set period of time for which an action plan is valid? | 41
44. Are there any other changes to the action plan process that you would recommend? | 41 Disability Standards – questions 45 to 47 | 41
45. How could compliance with and enforcement of the Disability Standards be improved? | 42 Defence of unjustifiable hardship | 43 Role of industry regulators | 43 Details of technical requirements | 43 Reviews of Disability Standards | 44 Development and governance | 45 Transport Standards | 45 Education Standards | 46 Premises Standards | 47
46. Should the Disability Discrimination Act be amended to encourage relevant duty holders to self-report on their compliance with the Disability Standard(s) in disability action plans? | 50
47. 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? | 51 Digital Accessibility Disability Standard | 52 Context: The need for digital accessibility | 52 Proposed Disability Standard for digital accessibility | 52 Addressing broader barriers to digital inclusion | 53 Integration with broader Disability Discrimination Act reforms | 53 Further Options for Reform | 54
48. Are there examples of legislative provisions in Commonwealth or state and territory anti-discrimination law that could be drawn on to modernise or strengthen the Disability Discrimination Act? | 54 Own motion investigation and complaint powers | 54
49. How can we ensure the Disability Discrimination Act remains fit-for-purpose into the future? | 54 Improving capacity to address systemic discrimination | 54 The role of Disability Discrimination Commissioner | 55 Conflict of laws | 55 Disability ready and responsive organisations | 56 Scope of protections under the DDA | 57

About this submission

Disability Voices Tasmania (DVT) welcomes this opportunity to make submissions in relation to the review of the Disability Discrimination Act 1992 (Cth) (DDA). The DDA is one of Australia’s most important pieces of legislation affecting people with disability and it is vital that it maintains currency with modern views and needs if it is to be affective in protecting the rights of disabled people in Australia.

Further, DVT acknowledges the extended time period allowed for comment. In our experience, this is rare but necessary if organisations and governments are to seek thorough and considered input from their communities and constituents.

Rather than provide specific comment on each question raised in the Issues Paper, we have identified several areas of particular interest to our members including:

1. Definition of disability
2. Intersectionality
3. Proving discrimination and burden of proof
4. Positive duty to eliminate discrimination
5. Offensive behaviour and vilification
6. Disability Action Plans
7. Disability Standards enforcement
8. Assistance animals.

We also provide comment on issues that are not specifically covered in the Issues Paper including:

• Clarify interaction of Disability Standards with state / territory discrimination laws.
• Clarify and where necessary extend areas of activity: participation in community and democratic processes (voting, jury service, representative roles), events happening in public.
• Disability Discrimination Commissioner must be a person with disability.
• Powers in relation to systemic discrimination.

Disability Voices Tasmania

DVT is Tasmania’s only cross-disability Disabled Persons Organisation. We work with and on behalf of all disabled people in Tasmania to ensure equity and equality for all. All of our

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Board and staff are disabled people, who understand from a first-hand perspective the needs, desires and issues faced by Tasmanians with disability. We take a collaborative approach to our work, preferring to work with other organisations and communities to ensure authentic representation and a thorough understanding of the issues faced by all disabled people.

Our purpose is to:

• Work together to ensure all people with disability can participate in and contribute to our community as equal and active citizens.
• Be an inclusive, diverse, transparent and democratic organisation led by and for people with disability.
• Strengthen and promote the individual and collective voices of people with disability.

Organisations endorsing this submission

The following organisations have endorsed this submission:

• Association for Children with Disability (Tas)
• Blind Citizens Australia – Tasmania Branch
• Carers Tas
• Community Legal Centres Tasmania
• Regional Autistic Engagement Network (Tasmania)
• ParaQuad Tasmania
• COTA (Tas)

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Summary of recommendations

Definition

In relation to key definitions in the DDA, Disability Voices Tasmania recommends as follows:

1. The form and approach taken in the definition of ‘disability’ in section 4(1) of the DDA should be retained.
2. Further consideration could usefully be given to whether some of the language of the definition in paragraphs (a) to (g) could be amended to remove particularly negative and stigmatised language, such as replacing in (e) the term ‘malfunction’ with ‘impairment to the functioning’, the term ‘malformation’ with ‘difference in the formation’ and the term ‘disfigurement’ with ‘visible irregularity’; replacing in (f) the term ‘disorder or malfunction’ with ‘condition’ in the two places it occurs, and replacing in (g) ‘disorder, illness or disease’ with ‘condition’.
3. The DDA should be amended to expressly recognise that the experiences people with disability have of discrimination can arise from the interaction of multiple (intersectional) personal characteristics and to allow complaints made under the Act to identify discrimination on the basis of disability and other personal characteristics.
4. The DDA should include, in the positive duty, the duty to prevent and eliminate intersectional discrimination (and related conduct).
5. A single definition of discrimination should be used in the DDA. This definition should be clear that it is inclusive of direct and indirect discrimination, the failure to make adjustments and all other forms of conduct that impair the enjoyment of equality of opportunity or treatment.
6. Consideration be given to providing greater guidance to decision makers in the provisions of the DDA as to what kinds of conduct constitute unfavourable treatment or barriers to equal opportunity. The framing of the sexual harassment prohibition in the Sex Discrimination Act 1984 (Cth) provides a model for this.

Positive Duty

In relation to a positive duty, Disability Voices Tasmania recommends as follows:

7. A positive duty should be introduced into the DDA and that it be enforceable by a regulator, not relying solely on complaints raised by individuals with disability.
8. The positive duty must apply to all private and public organisations with responsibilities under the DDA, including those bound by Disability Standards, and all public authorities such as courts, government ministers and agencies.

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9. The positive duty should encompass the prevention and elimination of all forms of unlawful conduct by or against all people interacting with the organisation or enterprise.
10. The positive duty should include mandatory Action Plans and annual reporting obligations. Implementation of these obligations should begin with Commonwealth, state and territory and local government bodies, tertiary educational institutions and those private sector employers with 100 or more employees.
11. The Australian Human Rights Commission (AHRC) should work with disability representative organisations and industry bodies to develop disability equality indicators, and the AHRC should be resourced to analyse and report on aggregated data.
12. The positive duty should explicitly require duty bearers to work with people with disability and disability representative organisations in developing and monitoring Action Plans and compliance measures, and that duty bearers and/or government must ensure people with disability and disability representative organisations are appropriately paid for their expertise.

Resource Development

In relation to the development of resources to support improved understanding of and compliance with the DDA, Disability Voices Tasmania recommends that:

13. The AHRC should be required to co-design guidance materials with people with disability and disability representative organisations.
14. The application of these materials should be considered when assessing compliance with the positive duty.
15. The AHRC should receive additional resourcing for its work on guidance materials and to be able to make appropriate payment for the expertise of people with disability and disability representative organisations.

Enforcement and Compliance

In relation to improved enforcement and compliance with the DDA, Disability Voices Tasmania recommends that:

16. An appropriate enforcement agency should be identified, resourced, and empowered to promote compliance and take enforcement action.
17. The agency should have powers to review anonymised complaints, share information with other government bodies, and receive reports from individuals and disability organisations.

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18. Legislation should establish a mechanism enabling reports of non-compliance by individuals or representative bodies to trigger investigations.
19. The enforcement agency should be required to report annually on compliance and aggregated equality data.
20. The AHRC should maintain a public register of:

a. de-identified DDA complaints and conciliation outcomes. b. compliance notices, undertakings, and sanctions.

21. Amendments should be made to enable AHRC or other enforcement agency to seek penalties or injunctions against non-compliant organisations, and to enable procurement exclusions, and public identification of non-compliant organisations.
22. Exceptions or limits to the positive duty should be framed as proportionality assessments, not blanket exemptions, and that the defence of unjustifiable hardship should not apply to the positive duty.

Adjustments

In relation to adjustments to ensure people with disability enjoy equality of opportunity under the DDA, Disability Voices Tasmania recommends as follows:

23. The DDA should be amended to create a stand-alone duty to provide adjustments.
24. The stand-alone duty to provide adjustments should extend to duties of governments to ensure people with disability are able to fully engage in the fulfilment of social, cultural, economic and civic life including civic duties such as voting, jury service, seeking election to parliament and being a member of parliament.
25. The DDA and any Disability Standards made under section 31 of the Act should be amended to replace the term ‘reasonable adjustment’ with adjustment wherever it occurs and revise the notes that refer to such adjustments to ensure they accurately reflect the scope of the obligation.
26. The stand-alone duty to make adjustments under the DDA and any Disability Standards made under the Act should clearly specify that the duty bearer must consult and collaborate with the person with disability requiring adjustment to identify the most effective adjustment(s).
27. The stand-alone duty to make adjustments under the DDA and any Disability Standards made under the Act should clearly specify that the duty bearer must implement adjustments up to the point of unjustifiable hardship.

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Harassment and other conduct as forms of discrimination

Disability Voices Tasmania recommends as follows:

28. The DDA should be changed through removing sections 35, 37 and 39 and adding a new section broadly based on section 17(1) of the Anti-Discrimination Act 1998 (Tas). The provision should, at minimum, make it clear that:

a. such conduct need not be repeated for it to be unlawful; b. the prohibition applies to conduct whether in a public place or a private setting; c. the prohibition applies in all areas of life in which discrimination is unlawful under the DDA and that people are protected from such conduct no matter what their role is in the particular situation; d. such conduct need not to be such that it would have profound or serious effects; e. the prohibition should extend to conduct that is likely to ridicule, demean, be derogatory and/or involves actual or threats of interference with mobility, communication and disability aids and/or equipment.

29. The DDA should include prohibition of public acts capable of inciting hatred, serious contempt or severe ridicule of people with disability in others, including in people who have a pre-existing bias against people with disability. Consideration should be given to this provision being identified as an offence by being located in Part 2, Division 4 of the Act.

Assistance Animals

In relation to assistance animals, Disability Voices Tasmania recommends that the DDA should be amended as follows:

30. Expressly require assistance animals to be, at all times, under the control (by whatever means is appropriate) of their handler when in public spaces.
31. Include coverage of people with disability accompanied by an animal where the presence of the animal alleviates the effect of the person’s disability and there has been no ‘training’ to achieve this effect; and clearly exclude companion animals more generally.
32. Require all assistance animals to have accreditation in respect of meeting hygiene standards.
33. Require all assistance animals and their handlers to have accreditation in respect of control and public access standards.

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34. The highest priority must be given to establishing a national framework for accreditation of assistance animals and assistance animal training programs. The framework needs to establish the following:

a. What standards for hygiene (and what it encompasses – dirty and/or unhygienic habits re toileting, eating etc compared to poorly groomed) and public behaviour are to be met and how they will be assessed. b. How regularly an assistance animal needs to be reviewed to assess that it continues to meet the standards, proof of review and follow up. c. Proof of time-limited ‘licence’ or accreditation for assistance animals to be produced on reasonable request. This might hold the same validity as a drivers licence. d. Mechanisms for making assessment available at a reasonable cost to individuals who rely on an assistance animal that has not been and cannot be trained and assessed by a specialist training body. Such assessments need to both assess the animal against the hygiene standards and the animal and its handler (the person with disability) against the public access/behaviour standards. e. If an entity is able to be delegated authority under the National Framework to accredit assistance animals, how regularly that entity is reviewed for its suitability to hold that delegation; and what the requirements are for this authority to be delegated including involvement of people with relevant disabilities in the training, quality control and accreditation of assistance animals.

35. A discrete project should be commenced immediately to identify existing assistance animal training and accreditation organisations to be listed in the regulations made under the DDA.

Action Planning

In relation to Action Plans under the DDA, Disability Voices Tasmania recommends as follows:

36. Those organisations with 100 employees or more (as defined in the Workplace Gender Equality Act (‘WGEA Act’)), other organisations that are ‘relevant employers’ for the purposes of the WGEA Act and government department and agencies (at all levels to the extent the federal government has power) must have an Action Plan.
37. Action Plans should play a role in respect of the proposed positive duties (that is a duty to actively identify and address potentially discriminatory policies, programs, services or communications). For organisations mandated to develop and report against an Action Plan, their plan and reporting should be relevant to the question of whether or not they are complying with their positive duty. A failure to develop or report against a plan should be deemed to be a failure to fulfil the positive duty.

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38. A voluntary Action Plan should be required to meet the criteria set out in a revised section 61 of the DDA. Section 61 should be revised to clarify that Action Plans need to be communicated to people with disability interacting with the action planner, that actions must be specific and timetabled, and that the action planner must ensure their Action Plan is available free of charge in accessible formats on a public-facing website.
39. The obligations in relation to any mandated action planner should be extended to identify that a mandated Action Plan and reports against the plan should be required to also:

a. include employment data in relation to people with disability (such as disability composition of the workforce, disability composition of governing bodies, remuneration rates of people with disability compared to those without, availability of flexible working arrangements and adjustments and their utilisation by people with disability, discrimination and related complaints or grievances made by people with disability; b. set out the timeline for regular audits and review, and amendment to the plan; and c. be co-designed with people with disability and have accessible mechanisms for consultation with and feedback from people with disability.

40. The functions and powers of the AHRC under the DDA be expanded to include reviewing Action Plans to ensure they comply with the requirement, auditing compliance of mandatory action planners, and reviewing reports of mandatory action planners.

Disability Standards

In relation to Disability Standards made under the DDA, Disability Voices Tasmania recommends as follows:

41. That work commence on the development of a Disability Standard for digital accessibility and consideration be given to further Disability Standards in the areas of government procurement, electoral processes and accessibility of public spaces other than buildings.
42. There should be an independent power to take action, including legal action, to challenge non-compliance with Disability Standards and other duties, such as the positive duty and the stand-alone duty to make adjustments granted either to the

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AHRC and/or to a suitable independent or government body, such as the Attorney-General’s Department.1

43. The DDA and Australian Human Rights Commission Act 1986 (Cth) should be amended to make it clear that disability organisations are authorised to make complaints about non-compliance with Disability Standards and other duties, such as the positive duty and the stand-alone duty to make adjustments.
44. The federal government should take whatever steps are necessary to ensure that all of the Australian Standards referenced in Disability Standards made under the DDA are publicly available at no cost.
45. The DDA should be amended to include a clear Disability Standards review provision requiring reviews to completed within 5 years of the adoption of a Disability Standard and further reviews to be completed within 5 years of the legislative completion requirement of the previous review. Such reviews should, however, be able to be completed more regularly in order to align with other related legislative review processes, such as the 3-year cycle for the National Construction Code.
46. Expert Advisory Groups (EAGs) should be established by the relevant federal agency in respect of each of the Disability Standards as an ongoing governance mechanism to ensure that the Disability Standards are kept up to date.2
47. In respect of all those aspects of the Disability Standards for Accessible Public Transport 2002 (Cth) (Transport Standards) that were to achieve full compliance by 2022, the defence of unjustifiable hardship should no longer be available. The DDA and/or the Transport Standards should be amended to provide a mechanism whereby the operator of public transport facilities where compliance is not possible due to factors outside the operator’s control can apply to the AHRC for an exemption from the particular provision of the Transport Standards either for the life of that particular transport element or permanently (such as where topography is involved). The Transport Standards should be amended to require an operator that is non-compliant for other reasons to apply for a time-limited exemption under section 55 of the DDA and provide an Action Plan setting out its timetable for achieving compliance. Any non-compliance with the Transport Standards in the absence of an exemption should be deemed to be unlawful discrimination with the defence of unjustifiable hardship clearly excluded.
48. Compliance with the Transport Standards should be expressly embedded in the regulatory requirements administered by transport industry regulators.

1 This is the case in the USA under the Americans with Disabilities Act. 2 An EAG was established in relation to renewal of the Premises Standards following the 2016 review, however, it was dissolved in 2021 despite support for its continuation from the disability community and building sector.

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49. The Disability Standards for Education 2005 (Cth) (Education Standards) should be amended to remove the word ‘reasonable’ from the term ‘reasonable adjustment’ and define adjustments as ‘those necessary and appropriate modifications and adjustments … needed … to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others’ the right to non-discriminatory education.3
50. All federal, state and territory governments should amend education licensing or similar legislation to require proof of compliance with the Education Standards as a condition of gaining or maintaining the right to provide education services.
51. The Administrative Protocol developed in conjunction with the Disability (Access to Premises – Buildings) Standards 2010 (Cth) (Premises Standards) should be adopted in all states and territories through amendments to relevant building laws. It should also be referenced in the Premises Standards in, for example, the factors listed in the defence of unjustifiable hardship in section 4.1. Consideration should be given to whether any amendment to the DDA itself is necessary and constitutionally valid.
52. The Premises Standards should be amended to ensure that future scheduled reviews occur in alignment with the 3-yearly reviews of the NCC with clear requirements to consult with people with disability. Alternatively, provision needs to be made for the NCC to be updated consistent with changes to the Premises Standards outside the usual NCC review period.
53. Reporting by organisations on their compliance with Disability Standards in Action Plans should be part of the mandatory action planning and reporting obligations proposed elsewhere in this submission. Also, the list in section 61 of the DDA of matters that must be dealt with in all Action Plans should include specific identification of current non-compliance with relevant Disability Standards, actions to be taken under the Action Plan to achieve compliance and the timetable for taking those actions.
54. The DDA should be revised to include a requirement, as part of the positive duty, that duty bearers develop a Design and Access Statement at the planning stage of any new initiative, and that this be explicitly referenced in the relevant Disability Standards.
55. The DDA and the Disability Standards should be amended to make it mandatory for duty bearers to report data on key elements relevant to measuring both improvements for people with disability and compliance with the Disability Standards.
56. Section 31(2) of the DDA relating to the effect of Disability Standards be amended to make it clear that Disability Standards are not intended to affect the operation of state and territory discrimination laws. The existing Disability Standards should be

3 See Convention on the Rights of Persons with Disabilities (‘CRPD’) art 2.

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amended to make it clear that they do not affect the operation of state or territory discrimination laws.

57. A dedicated body should be established to develop, support and monitor accessibility standards similar to those established in the USA and Canada.
58. A Disability Standard for digital accessibility should be developed and enacted under section 31 of the DDA, adopting AS EN 301 549:2024 – Accessibility requirements for ICT products and services as its technical basis. (See section on Disability Standards for details.)
59. The proposed Disability Standard for digital accessibility should include coverage of all digital forms and identity verification processes and require co-design with people with disability of these forms and processes.
60. The Australia Human Rights Commission should be resourced to develop co-designed guidance materials to support compliance with the proposed Disability Standard for digital accessibility and empowered and resourced to enforce compliance.

The Australian Human Rights Commission, the Disability Discrimination Commissioner and their powers and functions

In relation to the role of the Disability Discrimination Commissioner and the power and functions of both the Commissioner and the AHRC, Disability Voices Tasmania recommends as follows:

61. Sections 113 and 120 of the DDA should be amended to require that the person appointed to the role of Disability Discrimination Commissioner – whether as an acting appointee or otherwise – must be a person who publicly identifies as a person with disability and has been active in promoting the right of people with disability to equality and freedom from discrimination.
62. The DDA should be amended to empower the AHRC and/or the Disability Discrimination Commissioner to conduct an investigation into a situation of potential breaches of the DDA as if the Commissioner or Commission had received a complaint on that situation and, if the Commissioner or Commission is satisfied that the investigation discloses a prima facie case of a breach of the DDA, for the Commissioner or Commission to commence proceedings in the Federal Court of Australia as if the Commissioner or Commission were a person aggrieved by that situation.
63. The DDA should be amended to empower the AHRC to identify systemic issues regarding individual complaints and/or positive duty complaints such that the Commission can collaborate with other equality agencies to prevent recurring issues.

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64. Consideration should also be given to requiring judicial decision makers who are determining disability discrimination complaints to consider the extent to which the conduct that is the subject of the complaint is systemic in nature and to make orders requiring the removal of those systemic practices.

65. The DDA should be amended to introduce proactive systemic mechanisms to minimise reliance on individual complaints, and to facilitate organisations becoming disability ready, including the introduction of a positive duty and Action Plans, and more able to be appropriate in their disability responsiveness.

66. Consistent with Australia’s obligations as a state party to the Convention on the Rights of Persons with Disabilities (CRPD), the DDA should be amended to prohibit discrimination in all areas of life that are covered by the CRPD.

67. The DDA be amended to restrict the use of NDA’s in relation to systemic change outcomes.

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Definition – questions 1 and 2

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

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

The questions covered here relate to the definition currently used in the DDA, whether it should continue as the legal definition of disability and whether there might be another definition suitable, or modernisation of language, which might bring the act up to date with modern experiences and expectations.

Currently, the definition used is:

• disability, in relation to a person, means:

  (a) total or partial loss of the person’s bodily or mental functions; or

  (b) total or partial loss of a part of the body; or

  (c) the presence in the body of organisms causing disease or illness; or

  (d) the presence in the body of organisms capable of causing disease or illness; or

  (e) the malfunction, malformation or disfigurement of a part of the person’s body; or

  (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

  (g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future (including because of a genetic predisposition to that disability); or

(k) is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

The definition of ‘disability’ in the DDA is broad and inclusive and whilst it is impairment based, does not rely on a formal diagnosis. It is also not restricted to protection only for

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those with long-term or severe conditions. The DDA covers impairments that people have now, had in the past, may have in the future or which they are believed to have.

The critically important thing to note is that this is not a definition used in other pieces of legislation or by service providers or for accessing govt programs or services such as pensions. Those other definitions often serve to exclude people with some types of disability by excluding some impairments; thereby controlling the number of eligible people. It is important that those other narrow definitions not be used in discrimination law as the purpose of discrimination law is to ensure that discrimination against people with disability is always covered, irrespective of the nature, cause or longevity of their disability or impairment.

The review will provide an opportunity to modernise the definition of disability in the Act and the review paper notes the commonly expressed view that the definition of disability found in that Act is seen by many as being a ‘deficit’ or ‘medical model’ definition.

While the language may seem outdated it is in fact a definition of a diverse range of physiological differences, conditions or impairments. Such a definition is necessary to ensure protection from discrimination for the diversity of people who have or are imputed to have such differences or impairments and who experience prejudice-based discrimination or face barriers to equality.

The definition is necessarily extremely broad to ensure it captures anyone who has a condition or impairment AND who experiences discrimination related to that condition or impairment. So, for example it covers people with life-long conditions such as cerebral palsy or someone who with later-life depression or anxiety.

The issue is not what condition or impairment a person has the issue is whether they experience discrimination because of that condition.

The UN Convention on the Rights of Persons with Disabilities (CRPD or Convention) is a rights charter and not legislative discrimination law. It adopts a social model but does not define disability. Article 1 of the Convention says that it includes ‘those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.

Adopting a definition like this which borrows from the social model of disability would likely result in significant negative outcomes for people with disability as it focuses on long-term conditions and is unclear about whether it includes all people with disability, for example people who are neurodiverse. It also excludes people who cannot demonstrate they experience barriers. This could result in a definition which excludes many disabled people who experience barriers under certain conditions but not others, and those who have taken steps to reduce the barriers they face.

The social model of disability and the more recent human rights model of disability have been important developments in understanding the experiences of people with conditions

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or impairments and supporting advocacy around their marginalisation and exclusion. Neither is, however, a workable definition for the purposes of discrimination law.

This is because, under the social model, disability (or ‘being disabled’) is the term used to describe the interactions of societal structures and practices on people with conditions or impairments – I am disabled by the interaction of my condition or impairment and structural barriers and attitudes in society. This is not dissimilar to describing the experience of the interaction of a condition or impairment with structural barriers and attitudes in society as discrimination. In some ways, ‘disability’ under the social model encompasses ‘discrimination’ under discrimination law.

To require a person to establish that they have disability under the social model would be to add a further element to the test they have to satisfy to succeed with a discrimination claim. They would not only have to demonstrate they have an impairment, but also that they experience disadvantage because of the interaction of that impairment with societal structures and attitudes and that they have been treated less favourably because of that disadvantage. This becomes a circular and complex argument and would result in increased time, effort and costs to complainants and respondents under the act.

To our knowledge, the current approach to defining disability in the DDA has not resulted in people being excluded from protection on the basis they have been unable to establish the threshold of having disability. While some early cases may have tested this in relation to drug dependency and learning disorders, this has not been a focus of challenges.

While consideration may usefully be given to whether the language used to describe the diversity of physiological differences can be amended, it is vital that such amendments not be seen to be reducing the range of physiological differences, impairments and conditions that are encompassed in the current definition.

Another potential risk of fundamental changes to the approach taken to disability discrimination protections is that it would move from an ‘asymmetrical’ to a ‘symmetrical’ discrimination law.

As an asymmetrical law, the DDA provides protection for people with disability and does not provide protection for people who do not have a disability. That is, a person without disability cannot use the DDA to argue they have been discriminated against because they do not have a disability. In contrast, the Sex Discrimination Act 1984 (Cth) (SDA) is a symmetrical discrimination law as which protects all people from discrimination on the basis of their sex not just women. This means a man can use the SDA to argue they have been discriminated against because they are a man. Similarly, the Racial Discrimination Act 1975 (Cth) (RDA) is a symmetrical law as it provides protection for all people against discrimination on the basis of their race. A symmetrical model would not benefit people with disability and would remove the potential to focus on the structural and systemic nature of much of the discrimination experienced by people with disability.

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There is an opportunity to revise some aspects of the definition, for example replacing the word ‘disorder’ with ‘condition’, however, it is vital we do not reduce its protection or exclude those of us currently protected by its breadth.

Issues such as intersectionality or cultural issues and their effect on achieving equality and non-discrimination are important. These matter because of the differing nature of prejudice and discrimination experienced by people with different characteristics, including different disabilities. It is vital that a person with disability who is also Aboriginal, for example, can highlight their particular experiences of discrimination as resulting from the particular forms of prejudicial attitudes held towards Aboriginal people with disability. Our views on intersectionality and cultural issues are dealt with separately.

Disability Voices Tasmania recommends that the form and approach taken in the definition of ‘disability’ in section 4(1) of the DDA should be retained.

Disability Voices Tasmania recommends that further consideration could usefully be given to whether some of the language of the definition in paragraphs (a) to (g) could be amended to remove particularly negative and stigmatised language, such as replacing in (e) the term ‘malfunction’ with ‘impairment to the functioning’, the term ‘malformation’ with ‘difference in the formation’ and the term ‘disfigurement’ with ‘visible irregularity’; replacing in (f) the term ‘disorder or malfunction’ with ‘condition’ in the two places it occurs, and replacing in (g) ‘disorder, illness or disease’ with ‘condition’.

Paragraphs (a) to (g) of the definition of ‘disability’ in section 4(1) would then read:

• disability, in relation to a person, means:

  (a) total or partial loss of the person’s bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) impairment to the functioning of, difference in the formation of, or visible irregularity of a part of the person’s body; or (f) a condition that results in the person learning differently from a person without the condition; or (g) a condition that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

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Intersectionality – questions 3 and 4

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

People with disability are, like everyone else, diverse in their personal characteristics. They are diverse in their gender, in their sexual orientation, in their racial and cultural backgrounds, in their ages, in their parental, marital and personal relationships and more. This combination of personal characteristics, including disability, can affect the ways in which they are perceived by others and how they interact with systems. This, in turn, can affect the forms that prejudice and resulting discrimination against them takes. An example of this is that a man with cerebral palsy may experience different discrimination to a woman with cerebral palsy. For example, the man may be more likely to be falsely believed to be drunk in public because of slurred speech, while this may be less likely to be the perception of a woman with slurred speech. Such a belief is linked to the different stereotypes held of men and women.

It is notable that people with disability often have more than one impairment and those can also result in discrimination that is different from that experienced by a person with just one of those impairments.

These differences are referred to as intersectional effects and need to be encompassed in the scope of protections against discrimination for people with disability (and others protected under discrimination laws).

Australian discrimination law has not, to date, expressly required consideration of the intersectional effects on the nature of discrimination. This means that people’s experiences of discrimination are not fully understood or remedied by discrimination law.

Discrimination law should recognise that experiences of discrimination often arise from the interaction of multiple personal characteristics. Intersectionality should be addressed by allowing complaints under the DDA to identify discrimination on the basis of multiple personal characteristics including disability.

Disability Voices Tasmania recommends that the DDA should be amended to expressly recognise the experiences people with disability have of discrimination can arise from the interaction of multiple personal characteristics and to allow complaints made under the Act to identify discrimination on the basis of disability and other personal characteristics.

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4. 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?

The DDA must also require the proposed new positive duties (discussed later in this submission) to incorporate recognising and removing intersectional impacts. Similarly, Action Plan provisions should incorporate planned responses to removing barriers to people with multiple personal characteristics.

Disability Voices Tasmania recommends that the DDA should include, in the positive duty, the duty to prevent and eliminate intersectional discrimination (and related conduct).

Meaning of discrimination – questions 5, 6, 7 and 8

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

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

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

8. Should the reasonableness elements of 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.

The Issues Paper asks about how direct discrimination and indirect discrimination should be defined. While these are important questions, a more important question is how should ‘discrimination’ be defined. Currently the DDA separates discrimination into two forms that have been interpreted to be exclusive of each other: direct discrimination and indirect discrimination. This approach does not reflect the experiences of disabled people and creates additional barriers to effectively challenging discrimination we experience.

The adoption of a single, inclusive definition of discrimination would provide a more accessible legal form for both duty bearers and people with disability. This definition should make it clear that the two discrimination concepts—direct and indirect—are not mutually exclusive. It should also make it clear that discrimination includes systemic

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discrimination and other practices, such as offensive conduct, etc, that impair the enjoyment of the rights to equality (including equality of opportunity) and non-discrimination.

The CRPD does not make a distinction between direct and indirect discrimination; the DDA would be consistent with the CRPD if it emphasised that the two forms of discrimination are not mutually exclusive.

There is also a precedent in Australian discrimination law for eliminating the distinction between direct and indirect disability discrimination. The ACT does not distinguish between direct and indirect discrimination in the Discrimination Act 1991 (ACT). Instead, the definition of discrimination in that Act clearly encompasses the concepts of both direct and indirect discrimination. That provision is as follows:

8. Meaning of discrimination

   (1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.

Disability Voices Tasmania recommends that a single definition of discrimination should be used in the DDA. This definition should be clear that it is inclusive of direct and indirect discrimination, the failure to make adjustments and all other forms of conduct that impair the enjoyment of equality of opportunity or treatment.

Work needs to be done to achieve a comprehensive definition of discrimination that offers a much more sophisticated and nuanced understanding of the nature and scope of discriminatory conduct experienced by people with disability, including behaviours that are based in stereotypes and prejudice. This idea has been explored in detail by Banks in her PhD thesis on reforms to discrimination law. Banks concluded that these contemporary understandings of the range of forms that discrimination takes could be incorporated into discrimination law through broader framing.

Disability Voices Tasmania recommends that consideration be given to providing greater guidance to decision makers in the provisions in the DDA as to what kinds of conduct constitute unfavourable treatment or barriers to equal opportunity. The framing of the sexual harassment prohibition in the SDA provides a model for this.

Disability Voices Tasmania endorses the submission of the Australian Discrimination Law Experts Group in relation to question 6 and question 8.

Positive duty on duty holders to eliminate discrimination – questions 12 to 18

It has been clear for many years that the reliance on individuals to drive enforcement of the DDA is unfair and ineffective. It places an enormous additional burden on those already dealing with the personal impacts of discrimination. One of the hopes of people with disability when the DDA was enacted was that the inclusion of mechanisms for the

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development of Action Plans and Disability Standards would see much more rapid achievement of equality for all.

Instead, for example, Disability Standards such as the Disability Standards for Accessible Public Transport 2002 (Cth) (Transport Standards) and Disability (Access to Premises – Buildings) Standard 2010 (Cth) (Premises Standards) are being interpreted as meaning that only a person with disability personally affected by a breach of the standard can seek a legally enforceable outcome. This seems entirely inconsistent with the idea that these are ‘minimum standards’ must be met.

Disability Voices Tasmania joins others in the disability community as well as the AHRC,^4 the Disability Royal Commission, and many academics in urging that a positive duty is introduced to complement the individual complaint-based system. A regulatory system that relies on those who are traditionally disadvantaged and have been discriminated against to drive change has proven to be inadequate. The existing system is largely focussed on compensation for harm experienced by the individual with disability after the fact and does too little to prevent the harm from occurring.^5 It also results in people with particular disability – such as severe intellectual, cognitive or psychosocial disability – missing out on the equal opportunity promised by the DDA.

The reliance on individual complaints and the complaint process also does little or nothing to improve the capacity of organisations to operate in an inclusive way, particularly when so many complaints are resolved through private conciliations. Compensation for harm done is important and the complaint system needs to be retained and reformed, but a complementary positive duty with regulator enforcement is required to drive prevention of discrimination and related conduct and promote equality for all people with disability.

We note that a positive duty to improve accessibility exists in Canada under the Accessible Canada Act (ACA), which mandates that federally regulated organisations proactively identify, remove, and prevent barriers facing people with disabilities. This proactive approach, rather than waiting for requests, obliges organisations to create barrier-free environments by establishing accessibility plans, implementing standards, and ensuring that laws, policies, programs, and structures are designed with the needs of people with disabilities in mind.

Disability Voices Tasmania recommends that a positive duty be introduced into the DDA and that it be enforceable by a regulator, not solely by individuals with disability.

4 Australian Human Rights Commission, Free & Equal: A reform agenda for federal discrimination laws (AHRC, 2021) (‘Free & Equal Report’).
5 Courts and tribunals have even been reluctant to order conduct that has been found to be discriminatory to stop, asserting that the finding of discrimination should have this result. This is in stark contrast to the approach taken by the Canadian Human Rights Tribunal which deals with discrimination complaints under the Canadian Human Rights Act.

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

The duty should apply to all organisations – public and private, for-profit and not-for-profit – including those covered by Disability Standards. This approach aligns with the AHRC’s Free & Equal Report^6 and the Disability Royal Commission’s recommendations.^7

Disability Voices Tasmania recommends that the positive duty apply to all private and public organisations with responsibilities under the DDA, including those bound by Disability Standards, and all public authorities such as courts, government ministers and agencies.

13. 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?

While DVT cannot comment directly on the operation of the positive duty in the SDA, it emphasises that the DDA duty must go beyond employment and address discrimination across all life areas. The duty should reflect Australia’s obligations under the CRPD. The duty must address all unlawful conduct under the DDA – discrimination, harassment, victimisation, and non-compliance with standards – and apply to conduct by or against^8 individuals interacting with the duty bearer.

The duty should require proactive, reasonable, and proportionate steps to prevent discrimination both by and against people interacting with the duty bearer, including third-party conduct. In this way, it would complement existing work health and safety obligations.

Disability Voices Tasmania recommends that the positive duty encompass the prevention and elimination of all forms of unlawful conduct by or against all people interacting with the organisation or enterprise.

Reporting and Action Plans Accountability should be achieved through the DDA’s existing Action Plan mechanism – found in Part 3 of the Act – being expanded to include mandatory reporting. Duty bearers should:

• prepare and lodge an initial Action Plan to the AHRC; and

6 Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws (AHRC, 2021) 56.
7 Disability Royal Commission, Final Report: Realising the human rights of people with disability (2023, vol 4) 310 and following, recommendation 4.32.
8 See, Anti-Discrimination Act 1998 (Tas) s 22.

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• report annually on progress against the plan and against disability equality indicators (to be developed jointly by the AHRC, disability representative organisations, and sector bodies).

In acknowledgement of the initial burden this might impose on organisations, this could be limited at first to large duty bearers, such as government agencies and those organisations covered by the Workplace Gender Equality Act 2012 (Cth) (‘WGE Act’).

Many of these organisations will already have established and published Action Plans, so this would be an incremental step, serving a number of purposes of increasing transparency, structuring the positive duty response and allowing better information flow to the AHRC about compliance.

As with the reports that are required to be made to the Workplace Gender Equality Agency under the Workplace Gender Equality Act 2012 (Cth), duty bearers should be required to also report against relevant disability equality indicators.

These should be developed by the AHRC working with disability representative organisations with input from relevant industry sector bodies.

The agency empowered to enforce the positive duty, presumably the AHRC (see discussion below), would need to be given sufficient resources and powers to ensure it had capacity to review such reports and work with organisations to promote compliance.

Disability Voices Tasmania recommends that:

• The positive duty include mandatory Action Plans and annual reporting obligations.

• Implementation begin with Commonwealth, state and territory and local government bodies, tertiary educational institutions and those private sector employers with 100 or more employees.

• The AHRC work with disability representative organisations and industry bodies to develop disability equality indicators, and that the AHRC be resourced to analyse and report on aggregated data.

Co-Design and Consultation The positive duty must embed the principle of ‘nothing about us, without us’. Duty bearers should be required to consult and co-design their compliance strategies with people with disability and disability representative organisations, particularly those representing groups facing intersectional disadvantage. Adequate funding must be provided to individuals and disability representative organisations, for this systemic work.

Disability Voices Tasmania recommends that the positive duty should explicitly require duty bearers to work with people with disability and disability representative organisations in developing and monitoring Action Plans and compliance measures, and that duty

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bearers and/or government ensure people with disability and disability representative organisations are paid for their expertise.

Guidance Materials For the positive duty to be effective, organisations need accessible and practical guidance. The AHRC should collaborate with people with disability and disability representative organisations to create both general and sector-specific guidance materials that support compliance and serve as benchmarks for assessing compliance.

Disability Voices Tasmania recommends that:

• The AHRC should be required to co-design guidance materials with people with disability and disability representative organisations.

• The application of these materials should be considered when assessing compliance with the positive duty.

• The AHRC should receive additional funding for its work on guidance materials and to pay for the expertise of people with disability and disability representative organisations.

Enforcement and Oversight An adequately resourced enforcement body – ideally the AHRC – should promote, monitor, audit, and enforce compliance. It must have powers to provide education, conduct proactive audits, receive and share information, and act on reports from individuals or disability representative organisations. We note that the Canadian Human Rights Commission has a major role to play in relation to the positive duty.^9

Disability Voices Tasmania recommends that:

• An appropriate enforcement agency should be identified, resourced, and empowered to promote compliance and take enforcement action.

• The agency should have powers to review anonymised complaints, share information with other government bodies, and receive reports from individuals and disability organisations.

• Legislation should establish a mechanism enabling reports of non-compliance by individuals or representative bodies to trigger investigations.

Transparency and Public Reporting Transparency will strengthen accountability and public confidence.

The enforcement agency should publish annual reports on compliance and maintain a public register of:

9 https://www.chrc-ccdp.gc.ca/publications/towards-barrier-free-canada

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• de-identified DDA complaint data and conciliation outcomes;

• compliance notices and enforceable undertakings; and

• sanctions for non-compliance.

Disability Voices Tasmania recommends that:

• The enforcement agency should be required to report annually on compliance and aggregated equality data.

• The AHRC should maintain a public register of:

  • de-identified DDA complaints and conciliation outcomes; and
  • compliance notices, undertakings, and sanctions.

Sanctions and Regulatory Tools Effective enforcement of the positive duty requires a graduated system of sanctions – from guidance to penalties, injunctions, and public identification of non-compliant organisations.

The AHRC currently does not have the tools it needs to effectively enforce existing discrimination law mechanisms let alone the positive duty, and this needs to be addressed. In its position paper on reforming discrimination law in Australia, the Commission set out proposed reforms in relation to enforcement and provided a diagrams of those reforms in the form of an enforcement pyramid:^10

10 Australian Human Rights Commission, Free & Equal: A reform agenda for federal discrimination laws (AHRC, December 2021) 100, fig 3.4.

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Figure 1: AHRC’s proposed enforcement pyramid

The AHRC must be equipped with new tools and powers to implement compliance mechanisms in relation to the positive duty and other mechanisms found in the DDA, such as Disability Standards.

Disability Voices Tasmania recommends that amendments should be made to enable AHRC or other enforcement agency to seek penalties or injunctions against non-compliant organisations, and to enable procurement exclusions, and public identification of non-compliant organisations.

14. 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.

DVT notes that most duty holders have had over 30 years to meet existing obligations. Those already compliant should face minimal additional costs, while non-compliant organisations will bear appropriate new costs (costs that were identified by the regulatory impact assessments conducted at the time of enactment of both the DDA and Disability Standards made under the Act.

Benefits of achieving compliance through the positive duty include reduced discrimination, fewer complaints, improved inclusion, and major social and economic gains – addressing systemic failures estimated in the Disability Royal Commission to cost Australia at

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minimum $46 billion annually. To the extent there are costs of compliance, these will largely fall on organisations that have failed to meet existing obligations.

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

Any limits on the obligation to fulfil the positive should reflect proportionality—requiring only reasonable and proportionate measures—without undermining the purpose of the duty.

Disability Voices Tasmania recommends that exceptions or limits to the positive duty should be framed as proportionality assessments, not blanket exemptions, and that the defence of unjustifiable hardship should not apply to the positive duty.

Strengthening the duty to provide adjustments – questions 16 to 18

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

Disability Voices Tasmania supports the creation of a stand-alone duty to provide adjustments and that a failure to provide an adjustment should be defined as unlawful discrimination. This approach to adjustments will be better for both people with disability and organisations required to provide adjustments.

Disability Voices Tasmania recommends that the DDA should be amended to create a stand-alone duty to provide adjustments.

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

The scope of the duty should be expanded to capture all aspects of public life including all aspects of social and civic life, including civic duties such as making adjustments to enable people with disability to participate with their peers in jury service and voting. This approach would encourage and capture the purpose of the DDA in expanding and enhancing public participation of people with disability in all aspects of public life, consistent with Australia’s obligations as a state party to the CRPD.

Disability Voices Tasmania recommends that the stand-alone duty to provide adjustments should extend to duties of governments to ensure people with disability are able to fully engage in the fulfilment of social, cultural, economic and civic life including

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civic duties such as voting, jury service and seeking election to parliament and being a member of parliament.

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

DVT supports the removal of the term ‘reasonable’ from existing adjustment provisions of the DDA, in Disability Standards and in notes to these documents. Any proposed new stand-alone duty needs to be clear and understandable to everyone as to what is required. We cannot foresee any unintended consequences of this removal. Each of these recommendations are also consistent with the recommendations of the Disability Royal Commission.

Disability Voices Tasmania recommends that the DDA and any Disability Standards made under section 31 of the Act should be amended to replace the term ‘reasonable adjustment’ with adjustment wherever it occurs and revise the notes that refer to such adjustments to ensure they accurately reflect the scope of the obligation.

Identifying adjustments It is important that the DDA be clear in relation to the obligation on the duty bearer to consult with the person with disability to identify what adjustments are needed to enable non-discriminatory outcomes. It should not be the case that the person with disability must know precisely what adjustments will work for them in the particular context. Where the person with disability is a child entering a new domain, such as education, or is an adult with a recently acquired disability, or an adult entering a new domain such as a particular workplace, they are unlikely to have the knowledge of options available and should be able to work with the duty bearer and selected experts to identify the range of possible adjustments and then work through those to identify the most effective adjustments in the circumstances.

It is important that the DDA is clear about the obligations of a duty bearer has in relation to adjustments and how this requirement operates with the positive duty. In particular, the DDA should specifically include in the stand-alone duty the requirement of consultation and collaboration where a person requires an adjustment so that the obligation to construct the adjustment is not solely placed upon the person seeking the adjustment.

Disability Voices Tasmania recommends the stand-alone duty to make adjustments under the DDA and any Disability Standards made under the Act should clearly specify that the duty bearer must consult and collaborate with the person with disability requiring adjustment to identify the most effective adjustment(s).

Adjustments and unjustifiable hardship It is also important for duty bearers to understand that if fully removing the discriminatory effect would impose unjustifiable hardship, this does not remove the obligation to make

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such adjustments as are possible without imposing unjustifiable hardship. Putting off making any adjustments – particularly systemic changes – delays the achievement of more inclusive organisations and processes.

Disability Voices Tasmania recommends the stand-alone duty to make adjustments under the DDA and any Disability Standards made under the Act should clearly specify that the duty bearer must implement adjustments up to the point of unjustifiable hardship.

Offensive behaviour and incitement – questions 27 to 30

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

DVT supports amending the DDA to clearly make it unlawful to engage in conduct that is based in prejudice and negative stereotypes of people with disability. It needs to do this comprehensively given the significant impact of such conduct on the day-to-day lives of people with disability.

The current harassment provisions in the DDA As noted in the Issues Paper, currently, the DDA currently prohibits harassment only in three specific contexts: employment (section 35), education (section 37) and the provision of goods and services (section 39) and does not define harassment. While these are narrower in scope in terms of areas of life activity, they provide broader and more appropriate protections as they are not limited to conduct ‘otherwise than in public’ as is the case in the RDA.

Sadly, the current provisions in the DDA concerning harassment are largely ineffective and have rarely been relied on in complaints made under the Act. The courts have limited their effectiveness by requiring a pattern of conduct rather than a single incident in order for the conduct to be considered ‘harassment’.

This interpretation fails to understand the impact of disability prejudice on those who experience it repeatedly at the hands of different people, but not necessarily repeatedly from one person. Much has been written by social psychologists about the ‘negative mental … and physical health outcomes’^11 of stigma, discrimination and prejudice.^12

A single act by the perpetrator is not experienced as that by the person with disability. Rather it serves as a reminder to the person that their disability is seen as ‘other’, and they

11 Robin Banks, ‘A rose is a rose: But not all discrimination smells the same: An exploration of the capacity of the psychology of stigma, prejudice and discrimination to enhance discrimination law’ (PhD Thesis, University of Tasmania, 2024) 208. This thesis considers in detail the evidence of the impacts of prejudice on people’s mental and physical health.
12 Ibid 208–14.

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cannot escape such prejudice in any aspects of their lives. This impact needs to be understood and should inform the content of discrimination law protections to avoid any acts that perpetuate the stigma and prejudice people with disability experience.

Why a provision based on section 18C of the RDA would be insufficient We acknowledge that section 18C of the RDA provides some measure of greater protection than the current harassment provisions in the DDA.

Section 18C is, however, narrower in its protection because it only applies to actions taking place in public and in its failure to include actions taking place in connection with the areas covered by the prohibitions on discrimination, eg, employment, education, accommodation, provision of goods, services and facilities, access to premises, etc.

Section 18C of the RDA avoids the problem of requiring repeated conduct.

What conduct should be prohibited The RDA does not, however, include sufficient guidance on the types of conduct that should be understood to be forms of prejudice-based or discriminatory experienced by people with disability. People with disability do experience and should be protected from conduct covered by section 18C: conduct that ‘is likely, in all the circumstances, to offend, insult, humiliate or intimidate’ on the basis of disability. People with disability should also, however, be expressly protected against the range of types of stigmatising and prejudicial conduct that we experience.

Firstly, the conduct should be expanded to include conduct that is likely to ‘ridicule’ as this is a, sadly all too common, form of conduct targeting people with disability.^13 This term is included in section 17(1) of the Anti-Discrimination Act 1998 (Tas) that prohibits such conduct in relation to people with disability, and others. By including ‘ridicule’, section 17(1) mirrors the language used in section 17(3) which defines sexual harassment as another form of prohibited conduct.

To provide greater clarity to decision makers about the range of conduct that people with disability regularly experience, the provision should also include conduct that is derogatory and/or demeaning, and/or interferes with mobility, communication and disability aids and/or equipment.

Consideration could also be given to expanding this further to expressly refer to conduct founded in or derived from negative and prejudicial stereotypes of people with disability and ableism.

Where should conduct be prohibited Like the RDA, the prohibition should include prohibition of such conduct in public. As people with disability, we regularly experience negative and prejudicial conduct (including

13 People with disability are often mimicked about their outward appearance and actions, or derogatory terms to describe particular disabilities are used as a way to mock people without that disability, thereby ridiculing people with that disability.

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harassment) in public places.^14 This includes while we are going about our day-to-day lives: shopping, going to meet friends or to appointments, picking up our kids from school, attending social, cultural and recreational activities. As with other abuse (whatever form it takes) experienced by people with disability, such treatment:^15

… in public places has a material impact on the health and wellbeing of people with disability. It can cause individuals to modify their behaviours, such as by not going out in public alone and avoiding particular places, activities and people. This includes avoiding travelling on public transport, going to places where alcohol is consumed, and avoiding groups of teenagers and young adults. The overall effect is of limiting people’s lives and reducing their participation in the community.

This effect clearly breaches internationally recognised human rights found in the CRPD, in particular Article 30. It is important that such acts in public places also be prohibited under the DDA. In the event that the areas of activity identified in the DDA are not expanded to include public life generally, amendment to the DDA will be needed to make such conduct in public unlawful.

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

DVT is of the view that the terms discussed above should not be further defined, but that the DDA should make it clear that the prohibition does not require the conduct to have ‘profound and serious effects’.

This is not because such conduct doesn’t, in most cases, have profound and serious effects as evidenced both by research into harms caused by prejudicial actions considered above and by the statement of the Disability Royal Commission quoted above. Rather, it is because the vast majority of discrimination law decision makers are not people with disability who have experienced such conduct regularly and who understand the severity of its impacts no matter how trivial the specific incident may seem to a non-disabled observer.

The test used in section 18C of the RDA provide a suitable starting point for this aspect of the provision to be included in the DDA. The language ‘reasonably likely in all the circumstances to …’ is well understood by courts, lawyers and the general public. These terms import an objective standard which is based on the response of a reasonable member of the target audience, that is, a member of the relevant disability group. The provision should however make it clear that conduct need not be considered by the decision maker to have profound or serious effects in order to be unlawful under the prohibition.

14 Disability Royal Commission, Final report: Executive Summary, Our vision for an inclusive Australia and Recommendations (Commonwealth of Australia, September 2023) 49.
15 Ibid 50.

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Disability Voices Tasmania recommends that the DDA should be changed through removing sections 35, 37 and 39 and adding a new section broadly based on section 17(1) of the Anti-Discrimination Act 1998 (Tas) (ADA Tas). The provision should, at minimum, make it clear that:

• such conduct need not be repeated for it to be unlawful;

• the prohibition applies to conduct whether in a public place or a private setting;

• the prohibition applies in all areas of life in which discrimination is unlawful under the DDA and that people are protected from such conduct no matter what their role is in the particular situation;

• such conduct need not to be such that it would have profound or serious effects;

• the prohibition should extend to conduct that is likely to ridicule, demean, be derogatory and/or involves actual or threats of interference with mobility, communication and disability aids and/or equipment.

29. Should there be exemptions for any behaviour, similar to the Racial Discrimination Act?

DVT recognises the need for defences similar to those found in section 18D of the RDA. The approach taken in the ADA Tas to defences in respect of the relevant provisions is also useful to consider. Section 55 states that:

The provisions of section 17(1) [discussed above] and section 19 [discussed below] do not apply if the person’s conduct is –

(a) a fair report of a public act; or

(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act done in good faith for –

(i) academic, artistic, scientific or research purposes; or

(ii) any purpose in the public interest.

30. 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?

Disability Voices Tasmania notes the need for conduct that incites or encourages others to have negative attitudes and views of people with disability to be unlawful. There are, sadly, examples of public figures inciting negative views of people with disability through their

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public statements. One notorious example is the on-air comments of Prue MacSween that ‘children with disabilities should not be in classrooms with “normal” kids’. More recently the conflation of people with disability and fraud committed by NDIS providers has caused backlash against this vital national program.

The ADA Tas prohibits conduct that has the potential to incite negative views of particular attribute groups including people with disability. Section 19 of the ADA Tas states that ‘[a] person, by a public act, must not incite hatred towards, severe contempt for, or severe ridicule of a person or group of people on the ground of … any disability of the person or any member of the group’. This provision was used successfully by a Tasmanian with intellectual disability to challenge the public statements made by MacSween. That complaint resulted in a public apology from MacSween. Given such conduct is arguably more serious because of its public nature, consideration could be given to whether it should be characterised as an offence under the Part 2, Division 4 of the DDA.

It is important that the test not be whether the conduct was capable of inciting a reasonable person, but rather include those with existing negative or prejudicial attitudes.

Disability Voices Tasmania recommends that the DDA should be include prohibition of public acts capable of inciting hatred, serious contempt or severe ridicule of people with disability in others, including in people who have a pre-existing bias against people with disability. Consideration should be given to this provision being identified as an offence by located it in Part 2, Division 4 of the Act.

Assistance Animals – questions 38 to 40

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

The current provisions of the DDA in respect of assistance animals have been inadequate to address the diverse range of circumstances in which people with disability have assistance animals. From very early in the history of the DDA, industries – particularly transport industry operators – have raised the need for a nationally consistent approach to assistance animals including an effective accreditation system.

Currently, the DDA specifies that it is unlawful to discriminate against person with disability who has a carer, assistance animal and/or disability aid. Section 9 of the DDA sets how ‘carer’, ‘assistance animal’ and ‘disability aid’ are to be understood.

9 Carer, assistant, assistance animal and disability aid definitions

Meanings of carer or assistant, assistance animal and disability aid (1) … [deals with carers or assistants]

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(2) For the purposes of this Act, an assistance animal is a dog or other animal: (a) accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a person with a disability to alleviate the effect of the disability; or (b) accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or (c) trained: (i) to assist a person with a disability to alleviate the effect of the disability; and (ii) to meet standards of hygiene and behaviour that are appropriate for an animal in a public place. Note: For exemptions from Part 2 for discrimination in relation to assistance animals, see section 54A. (3) … [deals with disability aids]

Having a carer, assistant, assistance animal or disability aid (4) The following table has effect:

| Having a carer, assistant, assistance animal or disability aid | |—|—| | Item | For the purposes of this Act, a person with a disability has … | if the person … | | 1 | a carer or assistant | (a) … | | 2 | an assistance animal or disability aid | (a) is presently accompanied by, or possesses, the animal or aid; or
(b) was previously accompanied by, or possessed, the animal or aid; or
(c) may be accompanied by, or possess, the animal or aid in the future; or
(d) is imputed to be accompanied by, or to possess, the animal or aid. |

This means that assistance animal is not limited to guide or assistance dogs. To be an assistance animal, it must be either:

• accredited as an animal trained to assist a person with disability ‘to alleviate the effect of the disability’; accreditation can be by a state or territory accreditation scheme or by an animal training organisation that has been listed in a regulation made under the DDA; OR

• trained to assist a person with disability ‘to alleviate the effect of the disability’ AND meet hygiene and behaviour standards ‘appropriate for an animal in a public place’; no accreditation process is set out or apparently required.

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There are several aspects of these requirements that have caused problems. The first relates to the accreditation approach and there are two difficulties:

• Not all states and territories have systems for accrediting animals as assistance animals.

• There is no regulation made under the DDA that lists animal training organisations.

This means that assistance animals of people who live in states and territories that do not have assistance animal accreditation schemes cannot be accredited under the first option. This means they must rely on the second option: trained to assist and meets relevant standards. That option is relatively uncontentious for people with guide dogs, seeing eye dogs, seizure or epilepsy assistance dogs and some other dogs trained by reputable training bodies. It does not, however, deal with other animals or dogs trained by a person with disability themselves or trained by other organisations. It also does not deal with animals that, by simply being with a person with disability, ‘alleviate the effect of the disability’. This includes, for example, people with post-traumatic stress disorder, anxiety and similar conditions. These are generally referred to as ‘companion animals’ or ‘emotional support animals’. It should be noted, however, that not all companion animals ‘alleviate the effect of disability’.

A further gap in the current DDA provision relates to there being no requirement that the animal is, when in public, under the control (physically or otherwise) of the person with disability. For example, it would be inappropriate for an animal to wander away from their handler to meat display area of a supermarket or seek attention from other customers.

It is important that organisations providing services to the public, employing people or providing public transport can have confidence that an animal accompanying a person as an assistance animal meets public hygiene standards and is trained to behave safely in diverse public situations. Those organisations have a duty to take reasonable steps to ensure the safety of people coming into the spaces they control. It is clear that the current patchwork of accreditation and training in Australia is insufficient to provide organisations with confidence they can fulfil that duty and ensure non-discriminatory access for people with disability accompanied by assistance animals.

The gaps highlighted above in the DDA provisions need to be addressed and urgent work is needed to develop a national framework for accreditation of both assistance animal training organisations and accreditation of testing of animals to ensure they meet the hygiene and public behaviour (often referred to as ‘public access’) standards.

Disability Voices Tasmania recommends that the DDA should be amended to:

• expressly require assistance animals to be under the control of their handler when in public spaces;

• include coverage of people with disability accompanied by an animal where the presence of the animal alleviates the effect of the person’s disability and there has

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been no ‘training’ to achieve this effect; and clearly exclude companion animals more generally;

• require all assistance animals to have accreditation in respect of meeting hygiene standards; and

• requires all assistance animals and their handlers to have accreditation in respect of control and public access standards.

It is clear some training organisations that exist should already be listed in regulations because they meet international standards, such as training organisations accredited under the International Guide Dogs Federation (IGDF) (there are eight accredited in Australia). Action needs to be taken to identify all of those organisations and list them in the regulations made under the DDA as a matter of priority.

Disability Voices Tasmanian recommends that the highest priority must be given to establishing a national framework for accreditation of assistance animals and assistance animal training programs. The framework needs to establish the following:

• What standards for hygiene (and what it encompasses -— dirty and/or unhygienic habits re toileting, eating etc compared to poorly groomed) and public behaviour are to be met and how they will be assessed. The IGDF, for example, indicates that, in terms of public behaviour, dogs need to be assessed for distractibility, sensitivities, social behaviour, anxiety and reactivity, aggression and other qualities such as consistency, concentration, adaptability, etc.^16

• How regularly an assistance animal needs to be reviewed to assess that it continues to meet the standards, proof of review and follow up. Guide dogs, for example, are generally reviewed by the training organisation annually and this assessment could include review against the standards.

• Proof of time-limited ‘licence’ or accreditation for assistance animals to be produced on reasonable request (possible inclusion of photo ID that would have dual benefit for people with disability who are unable to hold a driver’s licence).

• Mechanisms for making assessment available at a reasonable cost to individuals who rely on an assistance animal that has not been and cannot be trained and assessed by a specialist training body. Such assessments need to both assess the animal against the hygiene standards and the animal and its handler (the person with disability) against the public access/behaviour standards.

16 International Guide Dog Federation, ‘Section 8: Guide dog assessment and training’ (undated) https://www.igdf.org.uk/about-us/starting-a-quide-dog-organisation/quide-dog-assessment-and-training/.

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• If an entity is able to be delegated authority under the National Framework to accredit assistance animals, how regularly that entity is reviewed for its suitability to hold that delegation; and what the requirements are for this authority to be delegated including involvement of people with relevant disabilities in the training, quality control and accreditation of assistance animals.

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

The Framework should be legislated (potentially through a combination of head and delegated legislation). It should be accompanied by guidance materials where appropriate.

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

Until such time as the National Framework is in place, organisations (training and accreditation) should be listed in regulation made under the DDA. Once the National Framework is in place, the DDA could be amended to remove the reference to the regulations in section 9(2)(b), and other amendments made to this provision to refer to assistance animals having to be accredited under the National Framework. Consideration needs to be given to whether or not the DDA should expressly require people with assistance animals to carry their accreditation document with them and produce it on request.

Disability Voices Tasmania recommends that a discrete project should be commenced immediately to identify existing assistance animal training and accreditation organisations to be listed in the regulations made under the DDA.

Disability Action Plans — questions 41 to 44

Part 3 of the DDA supports the idea of Action Plans in relation to organisations achieving the objects of the Act. These can cover all activities of organisations including employment, service provision (including information provision and education), access to premises and other facilities, and provision of goods. Under the current sections, Action Plans are voluntary for all organisations and can be given to the Australian Human Rights Commission (AHRC), which will make the plan public through its Action Plan (‘DDA AP’) register (the DDA AP Register).^17

Section 61 of the DDA sets out what Action Plans must include:

61 Provisions of action plans

17 Australian Human Rights Commission, ‘Register of Disability Discrimination Act Action Plans’ (undated) <https://humanrights.gov.au/our-work/disability-rights/register-disability-discrimination-act-action-plans>.

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The action plan must include provisions relating to:

(a) the devising of policies and programs to achieve the objects of this Act; and

(b) the communication of these policies and programs to persons within the action planner; and

(c) the review of practices within the action planner with a view to the identification of any discriminatory practices; and

(d) the setting of goals and targets, where these may reasonably be determined against which the success of the plan in achieving the objects of the Act may be assessed; and

(e) the means, other than those referred to in paragraph (d), of evaluating the policies and programs referred to in paragraph (a); and

(f) the appointment of persons within the action planner to implement the provisions referred to in paragraphs (a) to (e) (inclusive).

The DDA also states in section 11 that Action Plans given to the AHRC are relevant in considering whether the defence of unjustifiable hardship is available to a respondent. In other words the existence of an Action Plan can be one of the factors that can be considered as part of the respondents’ defence when faced with a complaint.

Since the DDA came into effect, some sectors have provided guidance to their members to encourage the development of Action Plans under the DDA. A good example of this is the local government sector.^18 The AHRC has also issued guidance materials on developing Action Plans.^19

The DDA AP Register lists and links Action Plans, categorising them under private and not-for-profit sectors, governments (federal departments, states and territories, and local government) and by education. There are currently almost 640 plans listed. It is notable, however, that most of these plans are for periods that have now passed; for example, the Commonwealth Bank plan is dated ‘2017-2020’, or have a single year date such as TransAdelaide’s plan which is dated on the DDA AP Register as ‘2007’, but the linked document is dated 2001.

Currently the AHRC does not assess any Action Plan or monitor their implementation and has never done so due mainly to lack of resources or the power to do so.

18 https://alga.com.au/wp-content/uploads/2025/08/ALGA-Disability-Inclusion-Planning-A-Guide-for-Local-Government.pdf
19 Australian Human Rights Commission, ‘Action plans and action plan guides’ (undated) <https://humanrights.gov.au/our-work/disability-rights/action-plans-and-action-plan-guides>.

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

DVT strongly supports the maintenance and expansion of the minimum requirements for Action Plans.

The current requirements are, however, insufficient, particularly in relation to larger organisations and their voluntary nature.

Action Plans and larger organisations DVT notes that, in contrast, the provisions of the Disability Rights, Inclusion and Safeguarding Act 2024 (Tas) (the Tasmanian Disability Rights Act) mandates ‘Disability inclusion action plans’ (DIAPs) for defined entities (which largely includes state government agencies) and of the Disability Inclusion Act 2014 (NSW) (the NSW Disability Inclusion Act) that mandates that all NSW government agencies and local councils have DIAPS.

It is also important to note that in relation to gender equity in employment, all employers with 100 or more employees (including those employed by subsidiaries, and higher education institutions) have a range of obligations under the Workplace Gender Equality Act 2012 (Cth) (WGE Act) including most relevantly, under Part IV to report annually to the Workplace Gender Equality Agency in relation to gender equality indicators.^20 These organisations have had obligations under that Act and its predecessors since 1986.^21 The obligations in the original Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth) (the 1986 Affirmative Action Act) included, in section 6, developing and implementing an affirmative action program in relation to women. That Act also set out, in section 8, what actions were specifically to be included in the plans, such as ‘the collection and recording of statistics …’ Organisations were required under Part IV to report against their plans every 12 months to the (then) Director of Affirmative Action, who could (under section 19) report a failure to comply to the relevant federal government Minister.

Obligations of this sort are vital to developing an understanding of the situation of people within the identified group in respect of that organisation. We currently have a situation in Australia where there is regular reporting on the pay gap for women, but no equivalent reporting on the pay gap or other employment data for people with disability.

Disability Voices Tasmania recommends that those organisations with 100 employees or more (as defined in the Workplace Gender Equality Act 2012 (Cth)), other organisations that are ‘relevant employers’ for the purposes of the WGEA Act and government

20 Workplace Gender Equality Act 2012 (Cth) s 3 (definition of ‘gender equality indicators’).
21 Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth) (‘the 1986 Affirmative Action Act’) s 3 (definition of ‘relevant employer’).

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department and agencies (at all levels to the extent the federal government has power) must have an Action Plan.

Action Plans and smaller organisations Action Plans in respect of other organisations should remain voluntary.

Relationship of Action Plans to positive duties Disability Voices Tasmania recommends that Action Plans should play a role in respect of the proposed positive duties (that is a duty to actively identify and address potentially discriminatory policies, programs, services or communications). For organisations mandated to develop and report against a Action Plan, their plan and reporting should be relevant to the question of whether or not they are complying with their positive duty. A failure to develop or report against a plan should be deemed to be a failure to fulfil the positive duty.

In respect of smaller organisations, which will have positive duties under the proposed amendment, they should be able to use their Action Plan as evidence of their compliance with their positive duty. This is similar in principle to the current relevance of Action Plans to the defence of unjustifiable hardship under section 11 of the DDA.

Scope of Action Plans Disability Voices Tasmania recommends that a voluntary Action Plan should be required to meet the criteria set out in a revised section 61 of the DDA. Section 61 should be revised to clarify that an organisation’s Action Plan needs to be communicated to people with disability interacting with the action planner, that actions must be specific and timetabled, and that the action planner must ensure their Action Plan is available free of charge in accessible formats on a public-facing website. The following sets out how these amendments might be achieved:

61 Provisions of action plans

The action plan must include provisions relating to:

(a) the devising of policies and programs to achieve the objects of this Act; and

(b) the communication of these policies and programs in accessible formats to persons within interacting with the action planner; and

(c) the review of practices the provision of goods, services and facilities, of information provision, of access to premises, and employment practices within of the action planner with a view to the identification of any discriminatory practices and any aspects of the action planner’s operations that do not comply with Disability Standards made under section 31; and

(d) the setting of goals and targets with specific actions to be undertaken and the timeframes for those actions where these may reasonably be determined against which the success of the plan in achieving the objects of the Act and compliance with Disability Standards made under section 31 may be assessed; and

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(e) the means, other than those referred to in paragraph (d), of evaluating the policies and programs referred to in paragraph (a); and

(f) the appointment of persons within the action planner to implement the provisions referred to in paragraphs (a) to (e) (inclusive); and

(g) (g) the maintenance of a publicly accessible (free and in alternative formats) copy of the action plan by the action planner.

Disability Voices Tasmania recommends that the obligations in relation to any mandated action planner should be extended to identify that a mandated Action Plan and reports against the plan should be required to also:

• include employment data in relation to people with disability (such as disability composition of the workforce, disability composition of governing bodies, remuneration rates of people with disability compared to those without, availability of flexible working arrangements and adjustments and their utilisation by people with disability, discrimination and related complaints or grievances made by people with disability;

• set out the timeline for regular audits and review, and amendment to the plan; and

• be co-designed with people with disability and have accessible mechanisms for consultation with and feedback from people with disability.

To fulfil an effective role in relation to the positive duty, an Action Plan should clearly address actions taken to fulfil that positive duty. The requirements for mandated Action Plans should also include a requirement to report against the plan annually.

The AHRC should be resourced to work with industry sectors to develop and keep current guidance on action planning, and to review both voluntary and mandatory Action Plans to ensure compliance with the requirements.

The Tasmanian Disability Rights Act, in Part 2 Division 2 sets out reporting, review and compliance processes that could usefully be considered in the review of the Action Plan provisions of the DDA.

Further, the DDA could usefully permit a DIAP made and lodged under the Tasmanian Disability Rights Act, the NSW Disability Inclusion Act or equivalent plans under other state and territory laws to be deemed to be meet all or some of the requirements of section 61 and be lodged under section 64. To support this approach, an amendment should also be made to section 11 regarding unjustifiable hardship to include consideration of Action Plans deemed to have been lodged under section 64.

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

Yes. The AHRC should also be able to provide feedback on how to improve Action Plans, including both plans that are accepted and that are rejected.

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

DVT suggests that voluntary Action Plans should be valid for 5 years unless there is a state or territory requirement for some form of action plans in relation to disability that applies to the organisation that has a different legislated time frame. For example, the Tasmanian Disability Rights Act requires 4-year plans. Action Plans that are no longer valid should be moved to a lapsed section of the AHRC DDA AP Register.

Mandatory Action Plans should be updated and remain valid so long as the mandatory action planner complies with its reporting obligations.

44. Are there any other changes to the action plan process that you would recommend?

In order to ensure compliance with both the positive duty and Action Plan requirements, the functions of the AHRC under section 67 of the DDA should be amended to include the functions of reviewing Action Plans against the requirements in section 61, auditing compliance actions plans of mandatory action planners and, also in respect of mandatory action planners, reviewing reports made in respect of their Action Plans.

Disability Voices Tasmania recommends that the functions and powers of the AHRC under the DDA should be expanded to include reviewing Action Plans to ensure they comply with the requirement, auditing compliance of mandatory action planners, and reviewing reports of mandatory action planners.

Disability Standards – questions 45 to 47

The Disability Standards provisions were, at the time of the DDA being legislated, seen as creating a very positive opportunity to achieve systemic change in key areas of life including public transport, access to premises, education and employment. Disability Standards were seen as a way to clarify what was required by organisations to comply with the DDA in those areas. Subsequently the DDA was changed to allow for Disability Standards to be made in any area covered by the DDA. To date, however, Disability Standards have only been established in the areas of public transport, education and buildings.

While the Transport Standards and Premises Standards are based on technical compliance standards, the Disability Standards for Education 2005 (Cth) (Education

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Standards) provide a looser approach to compliance based primarily on engagement with students and their families on individual needs.

Each of the Disability Standards provide for the defence of unjustifiable hardship similar, but not identical, to the provision in the DDA itself.

All three were developed through consultative processes involving industry, federal, state and territory governments and representatives of people with disability. All of them have timetables for review every 5 years. Unfortunately, it has been the case that reviews have generally begun towards the end of the 5-year period and taken many years to complete.

Section 32 of the DDA states that it ‘is unlawful to contravene a disability standard’, however, as discussed below, addressing non-compliance is extremely difficult.

In addition to our responses to the questions in relation to the existing standards and their enforcement, we propose that the opportunity to develop Disability Standards in any area of activity covered by the DDA be taken up, including for example through the development of a digital accessibility Disability Standard, which we provide further detail on at the end of this section. Other areas for consideration for a Disability Standard are: government procurement, electoral processes, and accessibility of public spaces to complement the existing Premises Standards.

Disability Voices Tasmania recommends that work commence on the development of a Disability Standard for digital accessibility and consideration be given to further Disability Standards in the areas of government procurement, electoral processes and accessibility of public spaces other than buildings.

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

Under the DDA, challenges to non-compliance rely entirely on individual complainants claiming they have been personally affected (‘aggrieved’) by the non-compliance. This means that even if non-compliance can be readily shown an individual who is personally affected must be the one to challenge that non-compliance. So, where a disability organisation or the AHRC identify clear non-compliance with a Disability Standard, neither are able to pursue a claim under the DDA for unlawful discrimination.

Disability Voices Tasmania recommends that there should be an independent power to take action, including legal action, to challenge non-compliance with Disability Standards and other duties, such as the positive duty and the stand-alone duty to make adjustments

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granted either to the AHRC and/or to a suitable independent or government body, such as the Attorney-General’s Department.^22

Disability Voices Tasmania recommends that the DDA and Australian Human Rights Commission Act 1986 (Cth) should be amended to make it clear that disability organisations are authorised to make complaints about non-compliance with Disability Standards and other duties, such as the positive duty and the stand-alone duty to make adjustments.

Defence of unjustifiable hardship The inclusion of the defence of unjustifiable hardship in the Disability Standards means that non-compliance cannot be established without a judicial determination. This has been one aspect of the Disability Standards that has undermined their effectiveness as a minimum standard to be met by all.

Role of industry regulators One concern about the way in which the Disability Standards operate is their lack of integration with relevant industry regulatory bodies and processes. This has been overcome to some extent with the Premises Standards with compliance being achieved through approvals process of state and territory building law which references the National Construction Code 2022 (Cth) (NCC). This is because the access provisions of the NCC are generally consistent with the requirements of the Premises Standards.

The lack of integration means that organisations that are aware of their obligations under relevant industry regulations can remain unaware of their obligations under the Disability Standards because their regulator does not necessarily consider these within its regulatory scope. This issue is considered in more detail below.

Details of technical requirements As noted above, both the Transport Standards and the Premises Standards set out technical compliance requirements. For example, the Premises Standards sets out minimum doorway widths and maximum gradients for ramps, and the Transport Standards require technical compliance in relation to continuous accessible paths of travel. A very significant number of these requirements refer to the technical compliance details found in various Australian Standards rather than setting out the details of those requirements in the Disability Standards. This means that a person or organisation seeking to assess whether or not a technical standard has been complied with must be able to access the relevant Australian Standards.

The Australian Standards are not publicly available and must be purchased and are not generally affordable by individuals with disability, many of whom are financially disadvantaged. For example, the Design for access and mobility, Part 1: General requirements for access – New building work (AS 1428.1:2021) costs $275, and Part 2

22 This is the case in the USA under the Americans with Disabilities Act.

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costs $193. The Transport Standards reference seven different Australian Standards, all of which would need to be purchased.

DVT joins the long-standing calls for all of the relevant Australian Standards to be made publicly available either through them being appended in accessible formats as schedules to the relevant Disability Standards or on a public-facing website maintained by Standards Australia or another appropriate body. If the copyright holder seeks compensation for this to happen, this should be a cost borne by the federal government on the basis that these form critical elements of public laws. DVT notes that in countries such as the UK, Canada and the USA access to these technical standards has been made public and free.

Disability Voices Tasmania recommends that the federal government should take whatever steps are necessary to ensure that all of the Australian Standards referenced in Disability Standards made under the DDA are publicly available at no cost.

Reviews of Disability Standards Each of the Disability Standards includes a provision for regular review to be undertaken. In general terms, these reviews are set at a 5-year interval, with slightly different wording in each one. While these provisions seem to require reviews to be completed within the 5-year interval (at least for the first review), this has clearly not been achieved. For example, the first review of the Education Standards, which were enacted in 2005, did not begin until December 2010 and the final report was not completed until June 2012.

Slow and inadequate responses by governments to the recommendations from the reviews has further delaying beneficial changes to Disability Standards. For example, the government response to the first review of the Education Standards was not made public until November 2012, 5 months after the review final report was completed. This means that effectively 2-years of the next review cycle had elapsed before any action on reforms to the Education Standards would be commenced. There have been recommendations in each of the three reviews of the Education Standards for amendments. To date there have been no amendments to the Education Standards since they came into force in 2005.

The 2021 review of the Premises Standards made a recommendation about updating the Guideline on the Application of the Premises Standards. This work is, however, yet to be progressed by the federal government.

Disability Voices Tasmania recommends that the DDA should be amended to include a clear Disability Standards review provision requiring reviews to completed within 5 years of the adoption of a Disability Standard and further reviews to be completed within 5 years of the legislative completion requirement of the previous review. Such reviews should, however, be able to be completed more regularly in order to align with other related legislative review processes, such as the 3-year cycle for the National Construction Code.

Consideration needs to be given to what can be done to ensure timely responses to review recommendations and undertaking the further work required to respond to those recommendations. At least one generation of children with disability have begun and

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finished compulsory education since the Education Standards commenced and we have seen no changes to improve those standards during that time.

Development and governance One of the reasons the reviews have been delayed and recommendations not acted upon is the lack of adequate ongoing governance mechanisms charged with renewal of the Disability Standards and the inability of the AHRC to allocate resources to help steer renewal processes.

Disability Voices Tasmania recommends that Expert Advisory Groups (EAGs) should be established by the relevant federal agency in respect of each of the Disability Standards as an ongoing governance mechanism to ensure that the Disability Standards are kept up to date.^23 This would be achieved if an access standards board as discussed below is implemented.

Resourcing to the disability sector to participate in those EAGs is vital.

Transport Standards The Transport Standards set out a 20-year timetable for most public transport providers to achieve compliance – therefore requiring full compliance by 2022 – with train and tram operators having 30 years. Whilst it appears from the information available that some aspects of public transport have achieved compliance, some areas such as taxis, bus stops and aviation clearly have not. In respect of taxis and bus stops, to some extent the problem lies in lack of clarity about who bears what obligations and, therefore, who is the proper respondent to a complaint about non-compliance.

Disability Voices Tasmania recommends that, in respect of all those aspects of the Transport Standards that were to achieve full compliance by 2022, the defence of unjustifiable hardship should no longer be available. It is recognised that there will be some circumstances in which compliance cannot be achieved, for example, the provision of accessible bus stop in a very hilly or rural area without footpaths. The DDA or the Transport Standards should be amended to provide a mechanism whereby the operator of public transport facilities where compliance is not possible due to factors outside the operator’s control can apply to the AHRC for an exemption from the particular provision of the Transport Standards either for the life of that particular transport element or permanently (such as where topography is involved).

Other situations may mean that compliance requires time and planning. The Transport Standards should be amended to require an operator that is non-compliant in this situation to apply for a time-limited exemption under section 55 of the DDA and provide an Action Plan setting out its timetable for achieving compliance.

23 An EAG was established in relation to renewal of the Premises Standards following the 2016 review, however, it was dissolved in 2021 despite support for its continuation from the disability community and building sector.

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Any non-compliance with the Transport Standards in the absence of an exemption should be deemed to be unlawful discrimination with the defence of unjustifiable hardship clearly excluded.

We noted above the issue of the role of industry regulatory bodies. This is particularly relevant to Transport Standards where a number of different state/territory and federal authorities regulate and licence particular modes of public transport. For example, the Tasmanian Department of State Growth is responsible for licensing taxi operations in Tasmania, however, it does not monitor compliance with the Transport Standards.

Disability Voices Tasmanian recommends that compliance with the Transport Standards should be expressly embedded in the regulatory requirements administered by industry regulators.

Education Standards Unlike the Transport Standards and the Premises Standards, the Education Standards do not provide mechanisms for technical compliance. Rather, they are framed in broad terms and apply without distinction to all aspects of education provision in Australia. The generality of the standards arguably makes it more difficult for providers to understand what it is they have to do to comply with the Education Standards and for people with disability to determine whether or not the provider has complied.

One key aspect of the Education Standards is the requirement of education providers to consult with the person with disability and/or their parent/guardian where relevant. In each of the areas of educational activity – such as enrolment in section 4.2 – there is a provision that indicates that, as long as the provider has complied with the consultation obligations found in each of these sections, they have complied with the obligation to take ‘reasonable steps’ to ensure non-discrimination.

These provisions also refer to an obligation to take ‘reasonable steps to ensure that the [person with disability] is able to [access, participate, etc] on the same basis as a [person] without disability, and without experiencing discrimination’: see, for example, section 5.2(1). This framing does not clearly apply the prohibition of direct and indirect discrimination in education. The words ‘on the same basis as’ suggest equal treatment is all that is required, therefore excluding consideration of indirectly discriminatory acts or omissions. The words ‘without experiencing discrimination’ may communicate the work needing to be done to prevent indirect discrimination to a discrimination law expert but are unlikely to communicate this to an education provider. The definition of discrimination in section 1.4 is unhelpful in this regard as it requires the reader to locate relevant provisions in the DDA.

Another particularly concerning aspect of the Education Standards is the way in which ‘reasonable adjustments’ are defined in section 3.4(1). This states that an adjustment is reasonable ‘if it balances the interests of all parties affected’. This reduces the rights of students with disability to ‘interests’ no more or less important than those of others involved in the situation. This is entirely inconsistent with Australia’s obligations under the

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CRPD and with the prohibition of discrimination in education in the DDA. As well as this fundamental problem with this framing, the decision about what is reasonable is to consider factors listed in section 3.4(2) that are also able to be again considered in determining whether a defence of unjustifiable hardship is available to the provider under section 10.2.

Consistent with our response in relation to the question about ‘reasonable adjustments’ earlier in this submission, Disability Voices Tasmania recommends that the Education Standards should be amended to remove the word ‘reasonable’ from the term ‘reasonable adjustment’ and define adjustments as ‘those necessary and appropriate modifications and adjustments … needed … to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others’ the right to non-discriminatory in education.^24

The operation of the unjustifiable hardship defence remains and provides sufficient protection for education providers.

Disability Voices Tasmania recommends that all federal, state and territory governments should amend education licensing or similar legislation to require proof of compliance with the Education Standards as a condition of gaining or maintaining the right to provide education services.

Premises Standards Non-compliance with the technical provisions of the Premises Standards occurs for several reasons including:

• lack of access to technical compliance documents;

• lack of understanding within the design, construction and certification sectors of the ways people with disability interact with the built environment and the relationship between compliance and good access for people with disability;

• misunderstanding or misinterpretation of the compliance requirements;

• lack of access to a mechanism to provide guidance on questions of unjustifiable hardship and alternative approaches to compliance (Performance Solutions); and

• failure to consider access-related matters at the earliest stage of a project.

The first issue will be addressed by making the Australian Standards available publicly. The second and third issues need to be addressed through the development of resources and training, which should have been prioritised by the building industry at the time the Premises Standards were introduced.

In relation to the fourth issue, DVT understands that questions relating to application of unjustifiable hardship and alternative approaches to compliance were to be covered

24 See Convention on the Rights of Persons with Disabilities (‘CRPD’) art 2.

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through the adoption of A model process to administer building access for people with a disability 2008 (Administrative Protocol) by states and territories. Such a protocol would have established expert bodies to consider and determine individual claims that full compliance with the technical standards would not be feasible for a range of reasons.

The Administrative Protocol that was drafted with the Premises Standards was never fully adopted by any state or territory. This means that there is nationally an inconsistent application of flexibility that the Premises Standards allow for. This makes it very difficult to determine whether or not the Premises Standards have been fully complied with in respect of any premises, undermining the confidence of the disability community in the effectiveness of the Premises Standards. The ongoing case involving David Cawthorn and the development at Parliament Square in Hobart is an example of the complexities and costs that could have been avoided had the Administrative Protocol been used to test compliance.

Design and Access Statement A failure to consider access-related matters at the earliest stage of a project often results in access matters being address as an ‘add on’ rather than core to the building design and construction.

Embedding access in the earliest stages of a project – at the planning approval stage for example – would improve compliance with the Premises Standards and encourage designers and developers to take a universal design approach to projects.

In the UK, certain types of developments must include a Design and Access Statement (DAS) at the early planning stage of a project. A DAS is a short report accompanying applications for planning permission and applications for listed building consent. They provide a framework for applicants to explain how the proposed development is a suitable response to the site and its setting, and demonstrate that it can be adequately accessed by prospective users.

A DAS should address the following questions:

• What is the design trying to achieve?

• How does it respond to the site and surroundings?

• How will people access the development, including those with disabilities?

• How have scale, layout, appearance, and landscaping been considered?

Under UK planning legislation, a DAS is mandatory in specific projects including:

• applications for major development (as defined in planning law)

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• development in designated areas (such as conservation areas or World Heritage Sites) where the proposal consists of one or more dwellings or a building with a floor space of 100 square metres or more; and

• applications for listed heritage building consent.

The access section of a DAS might consider at the planning stage the accessibility^25 of:

• approaches and entrances that provide for shared use;

• accessible parking and drop-off near entrances and key destination points;

• levels and how gradients will be accommodated;

• route widths, surfaces, distance;

• provision of sanitary facilities;

• wayfinding to the building;

• horizontal and vertical circulation enabling shared journeys, not separating people;

• emergency egress accessible to all users; and

• how people will use the development, including:

  • access to services;
  • lighting (consider people with partial sight);
  • acoustic design (consider people with hearing loss);
  • access to toilets, cafes and other services;
  • heights of counters, controls (eg, sockets, window latches);
  • seating and shelter; and
  • accessible signage, information and communication.

While this is a specific requirement in the UK relating to building developments, it is equally important to consider accessibility at the early stages of all new initiatives, such as

25 An example of guidance issued by a local government authority is https://www.horsham.gov.uk/planning/planning-applications/guidance-for-preparing-a-planning-application/writing-a-design-and-access-statement

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new government programs, new education modules and programs, new websites and transport services.

Disability Voices Tasmania recommends that the Administrative Protocol developed in conjunction with the Premises Standards should be adopted in all states and territories through amendments to relevant building laws. It should also be referenced in the Premises Standards in, for example, the factors listed in the defence of unjustifiable hardship in section 4.1. Consideration should be given to whether any amendment to the DDA itself is necessary and constitutionally valid.

Disability Voices Tasmania recommends that Premises Standards be amended to ensure that future scheduled review occur in alignment with the 3-yearly reviews of the NCC with clear requirements to consult with people with disability. Alternatively, provision needs to be made for the NCC to be updated consistent with changes to the Premises Standards outside the usual NCC review period.

Disability Voices Tasmania recommends that the DDA should be revised to include a requirement, as part of the positive duty, that duty bearers develop a Design and Access Statement at the planning stage of any new initiative, and that this be explicitly referenced in the relevant Disability Standards.

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

Disability Voices Tasmania recommends that reporting by organisations on their compliance with Disability Standards in Action Plans should be part of the mandatory action planning and reporting obligations proposed elsewhere in this submission. Also, the list in section 61 of the DDA of matters that must be dealt with in all Action Plans should include specific identification of current non-compliance with relevant Disability Standards, actions to be taken under the Action Plan to achieve compliance and the timetable for taking those actions.

One concern repeatedly raised in the reviews of Disability Standards has been the lack of baseline data against which improvements over time could be measured.^26 There is an understandable perception in the disability community that Disability Standards have had limited effect. Such perceptions could have been avoided had governments required from the outset reporting key indicators of improvements.

26 See, for example, Department of Education, Employment and Workplace Relations, Report on the Review of Disability Standards for Education (Australian Government, June 2012) 26, 28, 45 and 49 (recommendation 14); The Allen Consulting Group, Review of the Disability Standards for Accessible Public Transport: Final report (The Allen Consulting Group, October 2009) 9, 14 (Key issues/problems identified Table ES.1 – Issues 1 and 2), 40, 42, 46, 55, 58, 63, 67, 77, 79, 87, 88, 94 and following, 182, 191–93, 215 (Table 11.6, recommended action 1 in particular).

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Disability Voices Tasmania recommends that the DDA and the Disability Standards should be amended to make it mandatory for duty bearers to report data on key elements relevant to measuring both improvements for people with disability and compliance with the Disability Standards.

47. 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?

While the AHRC could potentially provide additional guidance to duty holders on reporting against the Disability Standards, that work would be best done in conjunction with existing relevant industry regulatory bodies and should be informed by funded input from disability representative organisations.

For the AHRC to be able to undertake this work it is clearly necessary that it have significantly increased resourcing given the current size of the Disability Rights Unit within the Commission. There are a number of areas of work relevant to achieving equality and non-discrimination under the DDA that require dedicated resources and diverse expertise. This is not currently available within the limited budget of the AHRC.

The Accessible Canada Act 2019^27 established a Canadian Accessibility Standards Development Organization with a mandate to:

18 The Standards Organization’s mandate is to contribute to the realization of a Canada without barriers, on or before January 1, 2040, through, among other things,

(a) the development and revision of accessibility standards; (b) the recommendation of accessibility standards to the Minister; (c) the provision of information, products and services in relation to the accessibility standards that it has developed or revised; (d) the promotion, support and conduct of research into the identification and removal of barriers and the prevention of new barriers; and (e) the dissemination of information, including information about best practices, in relation to the identification and removal of barriers and the prevention of new barriers.

In the USA, the US Access Board^28 is an independent federal agency that advances accessibility through leadership in accessible design and the development of accessibility guidelines and standards.

Disability Voices Tasmania recommends that a dedicated body should be established to develop, support and monitor accessibility standards similar to those established in the USA and Canada.

27 Accessible Canada Act 2019 https://laws-lois.justice.gc.ca/eng/acts/a-0.6/page-1.html
28 US Access Board https://www.access-board.gov

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Digital Accessibility Disability Standard

Context: The need for digital accessibility The DDA, enacted in 1992, predates the digital revolution, leaving a gap in protections for access to digital assets and infrastructure. As digital technologies now underpin education, employment, government services and civic participation, inaccessible digital platforms exclude people with disability, perpetuating discrimination. Despite an obvious need as technology has developed, no specific provisions mandate digital accessibility: this is unacceptable given Australia’s obligations under the CRPD Article 9 (accessibility).

Proposed Disability Standard for digital accessibility Disability Voices Tasmania recommends a Disability Standard for digital accessibility should be developed and enacted under section 31 of the DDA, adopting AS EN 301 549:2024 – Accessibility requirements for ICT products and services as its technical basis.

The proposed Disability Standard should be aligned with Web Content Accessibility Guidelines (WCAG) 2.2 Level AA and extended to non-web ICT (eg, digital documents, software). This international standard has been voluntarily adopted for the procured by governments in Australia broadly since 2016. The voluntary nature of the international standard has, however, led to inconsistent uptake, particularly among non-government entities.

A Disability Standard in this area would align with international best practices, such as section 508 of the Rehabilitation Act of 1973 (USA) and the European Accessibility Act,29 driving industry innovation by embedding accessibility in the design phase, reducing retrofit costs, and enhancing employment and service access for people with disability. For example, accessible digital workplaces could increase workforce participation for the 21.4% of Australians with disability. It would also ensure that Australian developed digital products would be competitive in and comply with the requirements of the European and US markets.

Adopting AS EN 301 549 in a Disability Standard under the DDA should encompass the following:

• Scope: All duty holders (government and government business corporations like Australia Post, educational institutions, and private organisations with public-facing digital services) should be required to comply with accessibility requirements for websites, apps, and digital interfaces.

• Implementation: Duty holders should be required to:

  • conduct regular accessibility audits;

29 Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services, L 151/70.

• co-design solutions with people with disability; and * report compliance in mandatory Action Plans (as proposed elsewhere in this submission).

  • Enforcement: The AHRC should be resourced to develop, with people with disability, guidance materials and be empowered to enforce compliance through the proposed positive duty and regulatory powers.

  • Phased approach: A phased implementation timeline, similar to the Transport Standards, should prioritise government and large organisations while supporting smaller entities with training and resources.

Addressing broader barriers to digital inclusion Beyond AS EN 301 549, people with disability face barriers in accessing digital forms, identity verification processes, and online services due to incompatible assistive technologies (eg, screen readers). For example, inaccessible government forms or telecommunications account setups exclude people who cannot use standard ID documents or processes such as requiring a signature or open eyes for photo identification.

Disability Voices Tasmania recommends the proposed Disability Standard for digital accessibility should:

 * mandate compatibility with assistive technologies for all digital forms and identity verification processes;

 * require duty holders to consult with people with disability to ensure accessible design of digital services, such as tax or employment platforms;

 * align with CRPD Article 9 to ensure equitable access to digital infrastructure, enabling independent participation in civic and economic life.

The AHRC should be resourced to develop co-designed guidance materials, including best practices for accessible digital forms and identity processes, to support compliance and reduce discrimination.

Integration with broader Disability Discrimination Act reforms The proposed Disability Standard for digital accessibility should be integrated with the proposed positive duty (Recommendation 7), requiring proactive measures to ensure digital accessibility, and mandatory Action Plans (Recommendation 36), incorporating accessibility audit outcomes and consultation data. The AHRC’s enforcement powers (Recommendation 16) should extend to monitoring compliance with this new Disability Standard, with penalties for non-compliance. Funding should be provided to support co-design with disability organisations and capacity-building for smaller duty holders, ensuring equitable implementation across sectors.

Further Options for Reform

48. Are there examples of legislative provisions in Commonwealth or state and territory anti-discrimination law that could be drawn on to modernise or strengthen the Disability Discrimination Act?

Own motion investigation and complaint powers The ADA Tas empowers the Anti-Discrimination Commissioner to investigate ‘any discrimination or prohibited conduct’ in the absence of a complaint being lodged, and that complaint is to proceed as if the Commissioner were the complainant, including by referring the complaint to the Tasmanian Civil and Administrative Tribunal for inquiry. These provisions are important to ensure the effectiveness of the prohibition of discrimination for individuals or groups of people with disability who experience breaches of discrimination law but who are unable to pursue a formal legal complaint.

Earlier in this submission, we discussed the need for the AHRC to have powers in respect of compliance matters under the positive duty, Action Plans and Disability Standards. The AHRC should also have powers in respect of breaches of the substantive discrimination prohibitions found in Part 2 of the DDA.

Disability Voices Tasmania recommends that the DDA should be amended to empower the AHRC and/or the Disability Discrimination Commissioner to conduct an investigation into a situation of potential breaches of the DDA as if the Commissioner or Commission had received a complaint on that situation and, if the Commissioner or Commission is satisfied that the investigation discloses a prima facie case of a breach of the DDA, for the Commissioner or Commission to commence proceedings in the Federal Court of Australia as if the Commissioner or Commission were a person aggrieved by that situation.

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

Improving capacity to address systemic discrimination There are currently barriers to effective collaboration between the AHRC and other equality agencies in Australia, including confidentiality provisions. It is vital that these agencies can work together to achieve the object of equality of opportunity for people with disability.

Disability Voices Tasmania recommends that the DDA be amended to empower the AHRC to identify systemic issues regarding individual complaints and/or positive duty complaints such that the AHRC can collaborate with other equality agencies to prevent recurring issues.

Disability Voices Tasmania recommends that consideration also be given to requiring judicial decision makers who are determining disability discrimination complaints to

consider the extent to which the conduct that is the subject of the complaint is systemic in nature and to make orders requiring the removal of those systemic practices.

The role of Disability Discrimination Commissioner Having a person in the role of Disability Discrimination Commissioner who is not a disabled person or who does not identify as a disabled person directly contradicts the central tenet of ‘nothing about us without us’. There have been times since the DDA was enacted that the role was filled by a person without disability. During those times, the disability community could not so readily identify that role as one that was there to speak up for our rights under the DDA and beyond.

It is vital that the role of Disability Discrimination Commissioner be held by a person with disability. The recently enacted Disability Rights, Inclusion and Safeguarding Act 2024 (Tas) specifies this in relation to the Disability Commissioner and any acting Commissioner appointed under that Act. This approach reflects the principle that mechanisms that affect the lives of people with disability should have people with disability in leadership positions.

Disability Voices Tasmania recommends that sections 113 and 120 of the DDA should be amended to require that the person appointed to the role of Disability Discrimination Commissioner – whether as an acting appointee or otherwise – be a person who publicly identifies as a person with disability and has been active in promoting the right of people with disability to equality and freedom from discrimination.

Conflict of laws It is understood that it was the intention of the Commonwealth Parliament when enacted in the DDA and making Disability Standards under that Act that these would operate alongside state and territory discrimination laws. Unfortunately, the drafting of the provision relating to Disability Standards – section 31(2)(b) – leaves open the possibility that a Disability Standard could ‘in whole or in part’ ‘affect the operation of a law of a State or Territory. The Transport Standards, the Education Standard and the Premises Standards are all silent on whether or not any part is intended to ‘affect the operation’ of such laws including those that prohibit disability discrimination.

This has resulted in complex legal arguments about whether the possible application of a Disability Standard to a situation that is the subject of a discrimination complaint under state or territory discrimination law prevents that complaint proceeding. One of our members, David Cawthorn, has been directly affected by this lack of clarity and has been engaged is legal action to uphold his right – and that of others – to non-discrimination access to public places since 2016. David’s case has progressed through the tribunal and court system up to the High Court and is now, again, back in the state system. At every stage of the case, the respondents have delayed proceedings through seemingly spurious legal arguments. David is yet to have the question of whether the development itself discriminates against him as a person with a mobility impairment.

Disability Voices Tasmania recommends that section 31(2) of the DDA relating to the effect of Disability Standards should be amended to make it clear that Disability Standards

are not intended to affect the operation of state and territory discrimination laws. The existing Disability Standards should be amended to make it clear that they do not affect the operation of state or territory discrimination laws.

Disability ready and responsive organisations Reform is required to ensure organisations across Australia are active participants in the goal of achieving a society free of barriers for people with disability. To achieve this outcome, organisations need to be disability ready and responsive:30

The idea of disability ready and responsive services encompasses three key aspects. Firstly, organisations need to be pro-active in identifying and removing potential barriers facing people with disability accessing their services and having equality of opportunity in that access. Secondly, organisations need to develop knowledge and skills to be able to respond appropriately and inclusively when a person with disability seeks to access their services. Thirdly, all staff should be made aware of the procedures and a culture of service flexibility embedded in the agency (or agencies).

History has shown that the DDA has not been interpreted to require organisations to act in these ways.

Legislative change introducing proactive systemic mechanisms, such as the implementation of a positive duty and stronger provisions about Action Plans, are key to requiring organisations to become disability ready. Both these mechanisms support the identification and planned removal of barriers to equality before individuals are affected by those barriers. In addition, and importantly, they would interact positively with the existing duty to make adjustments and comply with Disability Standards. Capacity to fulfil the duty to make adjustments – an element of disability responsiveness – must be underpinned by organisations having effective mechanisms for identification of the need for adjustments and timely and appropriate mechanisms for responding to those identified needs. It is clear that, over time, effective work on disability readiness will reduce, but not completely remove, the need to make adjustments.

Requiring and supporting organisations to become disability ready and responsive will result in a significant reduction in the current and inappropriate reliance on individuals to achieve the goal of equality. As stated above, reliance on individual complaints to achieve any form of equality is problematic. Compounding this, while people with disability are diverse, there are clearly systemic issues affecting either people with disability as a whole or one or more disability cohorts, which further problematise reliance on complaints in relation to the DDA. For the DDA to achieve substantive and positive change to the equal opportunities of people with disability in a more timely way than has been achieved to date, effective proactive and systemic mechanisms must be implemented.

30 This approach was first described in Tasmanian Government, Minister for Education and Training, Improved support for students with disability: Ministerial Taskforce Report (August 2015). The quoted material is from Anti-Discrimination Commissioner, Disability Framework for Action: 2018–2020: Submission by the Anti-Discrimination Commissioner (Tas) (June 2017) 8–10. It has been incorporated into Departmental actions under the Accessible Island framework of action for Tasmania.

Disability Voices Tasmania recommends that the DDA should be amended to introduce proactive systemic mechanisms to minimise reliance on individual complaints, and to facilitate organisations becoming disability ready, including the introduction of a positive duty and Action Plans, and more able to be appropriate in their disability responsiveness.

Scope of protections under the DDA Disability Voices Tasmania notes that people with disability seeking equal opportunity to participate in a number of life activity areas covered by articles of the CRPD are not protected against discrimination under the DDA. This includes, for example, being able to go out in the community, participating in jury service, and more.

Disability Voices Tasmania recommends that, consistent with Australia’s obligations as a state party to the CRPD, the DDA be amended to prohibit discrimination in all areas of life that are covered by the Convention.

Non-disclosure agreements (NDA) Where resolution of a complaint includes agreement to make changes that will remove systemic discriminatory practices or barriers to equal opportunity for people other than the complainant the DDA should expressly exclude non-disclosure in relation to those aspects of the resolution agreement.

This means that aspects of an agreement that, for example, relate to personal compensation to the complainant can be kept confidential while systemic benefits for people with disability would be able to be made public. This has the benefit of ensuring that people other than the complainant can monitor the respondent’s compliance with its legal obligation under the settlement agreement.

This has the added benefit of helping others with obligations under the Act to see what strategies are being implemented to remove discrimination.

Disability Voices Tasmania recommends that the DDA be amended to restrict the use of NDA’s in relation to systemic change outcomes.

Conclusion

Disability Voices Tasmania again thanks the department for the opportunity to comment on the review of the DDA. Further, we acknowledge the recommendations of the Disability Royal Commission to this end and congratulate the Commonwealth Government on following through on its commitment to review this essential Act.

Through community collaboration and co-design, we anticipate that the new Disability Discrimination Act will become a landmark piece of legislation that not only protects disabled people from imbedded and ad hoc discriminatory practices, but that will stand as a benchmark for rights-based legislation affecting all Australians.

We remain available for further comment and collaboration throughout the process of reviewing and establishing a new and stronger Act which will enable Australia to take the

next step in protecting the rights of disabled people and enhance its position as a leading country in promoting equality and equity for all Australians.

Contact: redacted – CEO

Disability Voices Tasmania

PH: redacted

E-mail: redacted