redacted
24 October 2025
VIA EMAIL: DDAreview@ag.gov.au
Dear colleagues, DCLS submission on review of the Disability Discrimination Act 1992 (Cth)
Thank you for the opportunity to provide input and for the continued efforts towards improving the Disability Discrimination Act 1992 (Cth).
The Northern Territory context requires highly effective legislation, a strong commitment to preventative education, accessible and adequately resourced complaint mechanisms, and an overall approach which achieves timely outcomes.
Our submission relating to the review is attached.
Please contact us if you would like to discuss any of the issues raised.
redacted
Principal Solicitor
Yours sincerely,
redacted
a
CEO
Darwin Community Legal Service
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24 October 2025
Darwin Community Legal Service submission on review of the
*Disability Discrimination Act 1992* (Cth)
Introduction
About us
Established in 1991, the Darwin Community Legal Service (DCLS) is a non-profit, community-based organisation committed to legal and social justice and the protection of human rights in the Northern Territory (NT). We assist those who are disadvantaged to access justice by providing legal advice and advocacy services, identifying issues and advocating for law reform, and promoting an understanding of rights and how to assert them. DCLS efforts include the:
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General Legal Service (GLS) which focuses on civil law rights including discrimination, human rights, due process and fair treatment in areas such as social security/family assistance, employment, consumer affairs, and adult guardianship;
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Tenants’ Advice Service which works with tenants, on access to housing and systemic issues relating to housing and homelessness; and
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Seniors and Disability Rights Service which advocates with and for older people and people with disabilities.
DCLS acknowledges the Larrakia people as the Traditional Owners of the Darwin region/Garramilla. We pay our respects to Larrakia elders past, present, and emerging. We also acknowledge and pay our respects to the Traditional Owners of country throughout Australia. We recognise their continuing connection to land, waters, and culture.
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Part 1 - Updating understandings of disability and disability discrimination
Definition of disability
Consultation question 1 - How should disability be defined in the Disability Discrimination Act?
Darwin Community Legal Service (DCLS) believes disability is a social construct and duty holders under the Disability Discrimination Act 1992 (Cth) (DDA), as well as broader society, have a positive duty to not use it as a ground for denial or restriction of human rights. While DCLS supports modernising the legal definition of disability in principle, we understand any modernisation must be done with caution to ensure no people with disability inadvertently fall outside the scope of the new definition.
Consultation question 2 – What factors should be considered in developing a new definition of disability
A new definition of disability should be both comprehensive and accessible. The definition should be capable of encompassing the extensive range of conditions that may substantially limit a person’s ability to perform everyday activities or participate fully in society, while also be drafted in a manner whereby a person with disability (especially a person without legal knowledge) may ascertain whether they fall within the definition for the purposes of the DDA.
Addressing intersectionality
Consultation question 3 – Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes?
DCLS believes the DDA would be strengthened by expressly allowing claims for multiple or combined protected attributes, because it would reflect the real-world experiences of people with disability. Many people with disability experience overlapping forms of discrimination and disadvantage, including protected attributes covered by other anti-discrimination legislation (for example, race, gender, sexual orientation, and age) as well as attributes which are not covered (for example, socio-economic status and residing in a remote location).
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Claims that explicitly reference multiple attributes, would help organisations, policymakers, and the public develop a clearer understanding of the lived experience of people with disability, which may:
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increase awareness of compounding discrimination;
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highlight structural inequities otherwise hidden in single-ground claims; and
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inform training, policies, and procedures.
Consultation question 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?
DCLS supports the inclusion of ‘intersectionality’ in the DDA, including race, gender, sexual orientation, age, location, and socio-economic status. The latter attributes are included to capture the full scope of intersectionality amongst our clients:
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Location: Remoteness disproportionately disadvantages First Nations people, compounding disability disadvantage through inadequate access to services.
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Socio-economic status: Poverty magnifies barriers to independence and inclusion, limiting access to housing, transport, education, healthcare, and supports — especially for First Nations people in remote Northern Territory communities.
Compounding impacts of discrimination against First Nations people
First Nations people are overrepresented with a rate of disability 1.9 times that of non-Indigenous Australians. Of NDIS participants in the Northern Territory 50.1% identify as Aboriginal and Torres Strait Islander (compared to 5.7% nationally) and yet, there is a lack of access to disability programs and services for First Nations people in remote areas.
Australian Institute of Health and Welfare, ‘Aboriginal and Torres Strait Islander Health Performance Framework’, Tier 1 — Health status and outcomes: 1.14 Disability (26 October 2024) https://www.indigenoushpf.gov.au/measures/1-14-disability.
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First Nations people, generally, face systemic discrimination, including:
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barriers to access programs and services;
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disparities in service provision relative to other Australians (for example, overcrowding, unacceptable delays in receiving services);*
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disparities in provision of infrastructure;
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difficulties accessing education and employment;
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language barriers;
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endemic poverty;
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extreme climate events; and
increased exposure to violence.*
For example, DCLS assisted an Aboriginal Elder who lives in a remote community outside Darwin. She lives with a serious health condition that affects her mobility. In the wet season, her house became inaccessible due to flooding of a poorly constructed ramp. The issue was not rectified until DCLS helped her find a solution.
DCLS staff have observed First Nations people in the Northern Territory experience systemic obstacles when attempting to access services such as the National Disability Insurance Scheme, the Disability Support Pension, and public housing due to:
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‘Ms Young was the tenant of residential premises at Ltyentye Apurte, also known as Santa Teresa, an Aboriginal community approximately 85 kilometres from Alice Springs. The Chief Executive Officer (Housing) (‘the CEO’), a corporation sole established under the Housing Act 1982 (NT), was the landlord. For 68 months, the premises had no back door in the doorframe. See Young v Chief Executive Officer (Housing) [2023] HCA 31, [2].
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See, e.g., Emily Smith, ‘NT family’s fight to get help for their toddler reveals cracks in national system’, ABC News (online, 14 March 2019) https://www.abc.net.au/news/2019-03-14/ndis-ndia-fight-remote-nt-systemic-flaws/10884414.
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‘Of the 11,540 assault victims in the [Northern Territory] in 2023, 10,434, or 90 per cent, were Aboriginal or Torres Strait Islander people’. See Charlotte King and Andy Burns, ‘NT government-funded security patrol caught on camera kicking man in the head’, ABC News (online, 1 April 2025) https://www.abc.net.au/news/2025-04-01/nt-government-funded-security-guard-caught-on-camera-kicking-man/105060870.
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Older Persons Advocacy Network, ‘Beverley’s story: remote advocacy’, OPAN Stories (Video, 2023) https://opan.org.au/story/beverleys-story/.
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limited awareness of available programs;
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limited ability to comply with highly technical application processes (this may be due to cultural/language barriers, difficulties obtaining identification documents, and limited access to digital services);
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even if the application is successful, there are minimal supports provided in remote communities (for example, no NDIS service providers or no available publicly housing to occupy).
In relation to public housing, general wait times for a single bedroom dwelling in the Northern Territory is eight to ten years. During our outreach sessions to assist people experiencing homelessness whom are predominately First Nations people, DCLS staff have observed what we term a ‘shadow wait time’ consisting of the time taken for a person to complete a compliant application for public housing (for example, the person gathering all the relevant documents including trying to obtain identification documents). This effluxion of time occurs before the application is submitted and the estimated wait time commences.
Amending the definition of direct discrimination
Consultation question 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?
DCLS is supportive of removing the comparator test from direct disability discrimination. This would involve amending section 5 of the DDA to repeal ‘less favourable treatment’ and replace with ‘unfavourable treatment’.
If this amendment were to occur, we also support including an exhaustive table which defines the meaning of ‘unfavourable treatment’, comparable to section 342 of the Fair Work Act 2009 (Cth) which outlines the meaning of ‘adverse action’.
We believe introducing (and clearly defining) the concept of ‘unfavourable treatment’ will support both people with disability and duty holders by providing certainty as to whether conduct in question constitutes unlawful discrimination.
See Northern Territory Government, ‘Social housing wait times’, Apply for social housing (2025) https://nt.gov.au/property/social-housing/apply-for-housing/apply-for-public-housing/waiting-list.
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Consultation question 6 – How should the burden of proof be addressed in the Disability Discrimination Act?
DCLS believes the respondent should bear the onus of proving their conduct was not because of the person’s disability. We question the logic of the current system whereby the person subjected to the conduct bears the onus of establishing the motivation for the conduct (as opposed to only the conduct itself).
We also believe this will closely align complaints under the DDA with general protections claims under the Fair Work Act 2009 (Cth), whereby (in relation to claims where the alleged adverse action is discrimination) the onus of proof for causation rests upon the respondent.
Amending the definition of indirect discrimination
Consultation question 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?
In the spirit of our view that disability is a social construct, DCLS supports amending the DDA to:
* repeal the ‘inability to comply element’ in subsection 6(1)(b);
* repeal the ‘inability to comply element’ in subsection 6(2)(b) and insert either:
* ‘because of the disability, the aggrieved person would be disadvantaged by the requirement or condition unless the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so’; or
* ‘a person with disability would be disadvantaged by the requirement or condition unless the discriminator made reasonable adjustments, but the discriminator does not do so or proposes not to do so’; and
* repeal the ‘reasonableness element’ in subsection 6(3)-(4).
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*Consultation question 8 – Should the reasonableness element in the definition of indirect discrimination be:
a. Removed
b. Retained and supplemented with a list of factors to consider
c. Replaced by a legitimate and proportionate test
d. Other*
DCLS believes the ‘reasonableness element’ in the definition of indirect disability discrimination should be removed or, in the alternative, be replaced by a ‘legitimate and proportionate test’.
We believe the prohibition against indirect disability discrimination may be adequately balanced by the exceptions in the DDA, which already outline circumstances where indirect discrimination may arguably be reasonable (for example, unjustifiable hardship and inherent requirements). We also believe this will ensure both people with disability and duty holders are aware of the circumstances when indirect disability discrimination may be lawful.
If repeal is not possible, DCLS would conditionally support amending the DDA to repeal subsections 6(3)-(4) and insert a ‘legitimate and proportionate test’ pending review of any exposure draft.
Consultation question 9 – Should the language of ‘does not or would not comply, or is not able or would not be able to comply’ be removed from the definition of indirect discrimination?
DCLS supports removing the language of ‘does not or would not comply, or is not able or would not be able to comply’ from the definition of indirect discrimination. We believe the prohibition on indirect disability discrimination should only assess the requirement or condition by the discriminator, not the abilities of the person with disability.
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Interpreting the Disability Discrimination Act in line with the Convention on the Rights of Persons with Disabilities
Consultation question 10 – Should the Disability Convention be included in the objects provision of the Disability Discrimination Act?
DCLS supports the inclusion of the Convention on the Rights of Persons with Disabilities in the objects provision in section 3 of the DDA.
Consultation question 11 – Should the Disability Discrimination Act be expressly required to be interpreted in a way that is beneficial to people with disability, in line with human rights treaties?
DCLS supports an express requirement the DDA be interpreted in a way that is beneficial to people with disability, in line with human rights treaties. Anti-discrimination legislation is the practical application of human rights, and a failure to interpret such legislation in accordance with relevant treaties risks undermining the intended outcomes.
Part 2 - Positive duty to eliminate discrimination
Consultation question 12 – If there was a positive duty in the Disability Discrimination Act, who should it apply to?
DCLS supports amending the DDA to insert a positive duty to eliminate discrimination, victimisation, and harassment. A positive duty requires a person, organisation, or authority to actively take steps to prevent harm or ensure compliance with rights, rather than merely refrain from harmful conduct.
We believe the positive duty should extend to persons conducting a business or undertaking (PCBU) in all covered areas in the DDA.
Persons conducting a business or undertaking
Applying the positive duty to PCBUs ensures consistency with the duty to eliminate unlawful sex discrimination under section 47C of the Sex Discrimination Act 1984 (Cth) (SDA) and would ensure broad coverage which promotes the objects of the DDA. This would also ensure the positive duty remains applicable in rapidly changing circumstances by applying to ‘gig economy’ companies.
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For example, our client (OC) was assisted by a registered assistance dog due to their disability. OC utilised a ride sharing application for transport and had registered their dog as an assistance animal with the ride sharing company (company). Despite this, OC would be regularly refused service by drivers using the ride sharing application (drivers) because of their assistance dog.
There is currently limited recourse against these companies for persons with disability who are refused service on these grounds. This is, generally, because the company takes reasonable steps to prevent the conduct from occurring, and the relationship between the driver and the company being unlikely to fall within the scope of vicarious liability under section 123 of the DDA. The person with disability’s complaint is then likely against the driver, which is not feasible to pursue if the alleged discriminatory conduct is being engaged in by different drivers on each occasion.
Covered areas of activity
Part 3 of the Anti-Discrimination Act 1992 (NT) (NT Act) provides Areas of activities where discrimination is prohibited in Part 4. We believe the application of a positive duty in the DDA should at least cover areas of activity under Part 2, Divisions 1 & 2 of the DDA, specifically:
* Work
* Education
* Access to premises
* Goods, services and facilities
* Accommodation
* Land
* Clubs and incorporated associations
* Sport
* Administration of Commonwealth laws and programs
Consultation question 15 – Should there be exceptions or limits to the application of a positive duty?
Taking guidance from section 47C of the SDA and the NT Act, DCLS does not believe there should be exceptions or limits to the application of a positive duty. This is because a positive duty, generally, only requires a person to take reasonable and proportionate measures.
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Part 3 – Encouraging inclusion of people with disability in employment, education and other areas of public life
Strengthening the duty to provide adjustments
Consultation question 16 – Would the creation of a stand-alone duty to provide adjustments better assist people with disability and duty holders to understand their rights and obligations.
In the spirit of our view that disability is a social construct, DCLS supports amending the DDA to create a stand-alone duty to provide adjustments. We believe the creation of a stand-alone duty to provide adjustments would promote certainty of the rights of people with disabilities and obligations of duty holders.
For example, our client (OC) was a person with physical disabilities who required mobility aids to maintain independence. OC worked for a multinational company. The workplace was not accessible to OC because of their disability. The employer addressed the situation by allowing OC to work from home, however, OC found the experience isolating and could not accept shifts when (due to the nature of their work) on-site attendance was mandatory.
Consultation question 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?
DCLS believes the duty to provide adjustments should apply to areas of public life covered by the DDA and any extension to the scope of the duty should arise by amendments to extend the areas of public life covered by the DDA in general.
Consultation question 18 – Would removing the word ‘reasonable’ from the term ‘reasonable adjustments’ to align the language with the legal effect create any unintended consequences?
DCLS supports removing the word ‘reasonable’ from the term ‘reasonable adjustments’ and says further that doing so should not create any unintended consequences so long as ‘unjustifiable hardship’ remains in the DDA (i.e., the amendment is stylistic).
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Definition of and considerations for unjustifiable hardship
*Consultation question 19 – What is your preferred approach to achieving greater fairness and transparency in claims of unjustifiable hardship:
a. The Disability Royal Commission
b. A new definition of unjustifiable hardship
c. Other*
DCLS supports the implementation of a new definition of unjustifiable hardship, which promotes the net benefit (or detriment) to the community. This will create some consistency with the operation of section 24 of the NT Act, whereby a relevant consideration is ‘the cost of accommodating the special need and the number of people who would benefit or be disadvantaged’. We view this test as the most reasonable approach to building an inclusive society.
Exclusionary discipline and suspension
Consultation question 23 – Should the concepts of exclusion and exclusionary discipline be defined in the Disability Discrimination Act?
DCLS supports amending subsection 22(2) of the DDA to expressly include exclusion and exclusionary discipline as unlawful discrimination in education.
Consultation question 24 – Should there be exceptions or limits on when exclusion is unlawful?
All else being equal, DCLS believes the decision in Purvis v New South Wales [2003] HCA 62 strikes an equitable balance between the competing public interests of eliminating discrimination and maintaining public safety.
In the event section 5 of the DDA was to be amended to repeal the ‘comparator test’ (see consultation question 5) and/or to shift the burden of proof for causation onto the educational authority (see consultation question 6), DCLS believes there should be an exception to when exclusion is unlawful disability discrimination to ensure educational authorities may address behaviour that poses a threat to the safety of other persons for whose welfare they are responsible.7 We say further that such an exception should also
7 See *Purvis v New South Wales* [2003] HCA 62, [14].
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address off campus behaviour (for example, cyberbullying) if there is a sufficient connection to the education authority.
Consultation question 26 – Would a different approach to exclusionary discipline be more appropriate in the higher education and vocational and training sectors?
DCLS does not support a different approach to exclusionary discipline in the higher education and vocational and training sectors.
Part 4 - Improving access to justice
Offensive behaviour and vilification protections
Consultation question 27 – How could the Disability Discrimination Act be amended to protect people with disability from offensive behaviour and/or harassment?
The DDA should be amended to include prohibitions against offensive behaviour comparable to the Racial Discrimination Act 1975 (Cth) (RDA) or, in the alternative, the NT Act.
Consultation question 28 – If the Disability Discrimination Act were to prohibit offensive behaviour and/or harassment, how should these terms be defined?
DCLS supports amendments to the DDA to insert a vilification provision similar in terms to section 18C of the RDA. This would make it unlawful for a person to do an act, otherwise than in private, if:
* the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
* The act is done because of the disability of the other person or of some or all of the people in the group.
In the alternative, DCLS would not object to substituting ‘offend, insult, humiliate or intimidate another person or a group of people’ with ‘incite hatred towards, serious contempt for or severe ridicule of another person or a group of people’. This alternative test is utilised in the now passed Anti-Discrimination Amendment Bill 2025 (NT).
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Consultation question 29 – Should there be exemptions for any behaviour, similar to the Racial Discrimination Act?
DCLS acknowledges the importance of striking an equitable balance between the public interests of social cohesion (protecting persons with disabilities from vilification) and social progress (safeguarding legitimate forms of public expression). We believe exemptions comparable to section 18D of the RDA achieve this balance.
Consultation question 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?
Under Part 2, Division 3 of the DDA, discrimination involving harassment is only unlawful in employment, education, and the provision of goods and services. DCLS supports expanding the harassment provisions to all other areas where discrimination is prohibited (for example, accommodation, sport, and clubs and incorporated associations).
Part 5 - Exemptions
Consultation question 35 – Should a definition for special measures be added to the Disability Discrimination Act?
DCLS supports amending the DDA to insert a definition for ‘special measures’ and say further the definition should outline the ‘purpose of achieving substantive equality’ comparable to section 7D of the SDA.
Consultation question 37 – Would you recommend any changes to the legislative process of granting temporary exemptions?
DCLS believe the DDA should be amended to repeal the granting of temporary exemptions by the Australian Human Rights Commission. It is our view that conduct which would otherwise constitute unlawful discrimination must fall within an existing exemption and/or exception.
Part 6 - Modernising the Disability Discrimination Act
Assistance animals
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Consultation question 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?
DCLS supports nationally consistent regulation of assistance animals to provide equal rights under the DDA, irrespective of the state or territory people with disability reside and say further this will provide clarity for all people with disabilities and duty holders. This may also improve training standards for assistance animals.
Consultation question 39 – Would legislative amendments or guidance materials be helpful to balance flexibility and certainty, or a mixture of both?
DCLS supports prescribing a national accreditation scheme and standards of evidence in regulations to the DDA.
Consultation question 40 – Should specific training organisations be prescribed under the Disability Discrimination Regulations?
DCLS believes regulations should prescribe a national accreditation scheme, and training organisations would need to be accredited under the scheme. We believe this will promote an adequate supply of assistance animals by allowing smaller, local training organisations to participate.
Part 7 - Further options for reform
Consultation question 50 - How can we ensure the Disability Discrimination Act remains fit-for-purpose into the future?
Modernise understandings of disability and discrimination
DCLS believes the best way to ensure the DDA remains fit-for-purpose is by broadening conceptual understandings of disability and what constitutes discrimination.
The DDA should also expand the concept of discrimination to address instance of abuse and exploitation of persons with disability. This may provide recourse to a person with disability who has been the victim of abuse or exploitation because of their disability
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where other legal options are not otherwise viable (for example, complex equitable claims).
For example, the DDA may be amended to include a prohibition against unconscionable conduct comparable to section 20 of the Australian Consumer Law (Cth). This would provide a victim of financial abuse standing to seek compensation from an abuser (or a vicariously liable entity) if they were financially exploited because of their disability via a straightforward statutory claim.
Further promote access to justice through access to small claims proceedings
DCLS commends section 46PSA of the Australian Human Rights Commission Act 1986 (Cth) as a step towards promoting access to justice by reducing the adverse costs risk previously faced by people with disabilities.
DCLS believes the DDA should also be amended to enable people with disabilities to pursue complaints via a small claims application within the Federal Circuit and Family Court of Australia (Division 2).8 This will provide an avenue to pursue proceedings in a less formal setting and empower people with disability to effectively prosecute their own complaints without the need to spend significant amounts of money on legal representation.
Consultation question 51 – Are there any other issues with the Disability Discrimination Act that should be considered as part of this review?
Reliance on individual complaints
Enforcement of the DDA is complaints-driven, relying on individuals to initiate proceedings through the Australian Human Rights Commission. This reactive model is inaccessible for many people with disability, who may fear reprisal, lack legal support, or be unable to navigate complex systems. Although DCLS supports the introduction of representative complaints,9 we still believe this is unlikely to address the factors making the model inaccessible.
8 Applications to the Federal Circuit and Family Court (Division 2) for small claim proceedings are available for claims up to $40,000 for some consumer credit disputes and up to $100,000 for some employment disputes (including underpayments). See *Fair Work Act 2009* (Cth) s 548; *National Consumer Credit Protection Act 2009* (Cth) s 199; *Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025* (Cth) pt 29, div 31.4.
9 *Australian Human Rights Commission Act 1986* (Cth) s 46P.
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Accessibility and inclusion
Many public buildings in the NT remain inaccessible, despite the Premises Standards 2010. For example, health centres, police stations, and shops in remote towns frequently lack ramps or accessible toilets.
The Transport Standards 2002 are poorly enforced. In Darwin and Alice Springs, buses may be accessible, but in regional areas accessible taxis and buses are rare or non-existent.
Northern Territory Government websites do not currently meet Web Content Accessibility Guidelines (although they are currently working towards meeting it). Our clients report being unable to renew identification or apply for NDIS supports online without assistance.
Remedies and standards
Remedies under the DDA are currently inadequate: compensation is often low, settlements are confidential, and systemic issues remain unaddressed. Disability Standards are outdated and narrowly focused. For example, digital accessibility, employment, and health care are not covered by enforceable standards.
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