Why does Australia’s Disability Discrimination Act
need amending. Submission on behalf of
People with Multiple Sclerosis, Victoria
(Nigel Caswell, O.A.M.)
Multiple Sclerosis
Multiple Sclerosis (MS) is the most acquired neurological disease in younger adults around the world with over 2.8 million people affected. More than 33,000 Australians live with MS and over 7.6 million Australians know someone or have a loved one with this potentially debilitating disease. MS is a chronic disease that attacks the central nervous system (the brain, spinal cord and optic nerves. A person living with MS may or may not have a disability. Many people live well with MS and many do not consider themselves to be disabled. MS symptoms can significantly vary between people and can come and go; they can include severe pain, walking difficulties, debilitating fatigue, partial blindness and thinking and memory problems. For some, MS is characterised by periods of relapse and remission, while for others it has a progressive pattern of disability. MS robs people of quality of life, primarily driven by the impact of MS on pain, independent living, mental health and relationships.
People with Multiple Sclerosis, Victoria
People with Multiple Sclerosis Victoria is a community based organisation which represents people living with multiple sclerosis. It has several thousand members scattered across Victoria, NSW, Tasmania and the ACT.
The Disability Discrimination Act
The Disability Discrimination Act 1992, (DDA), is now more than 30 years old. When originally introduced it was leading legislation, but it no longer adequately protects the human rights of people living with disability, across all areas of their lives. Australia has ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which recognises equality and non discrimination as fundamental rights. The regulatory framework for the DDA, which includes the Disability Standards, is not strong enough and is difficult to enforce The DDA must now be modernised to reflect these obligations and to ensure people living with a disability can participate fully, equally and freely in society. ============================================= Australia is a signatory to the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The CRPD challenges the ableism that underpins much of our society. Ableism is the product of prejudice towards people with disability. Ableism presents a view that people with a disability are inherently less valuable and less important than “able” members of society..
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Ableism, like racism and sexism, results in inequality and discrimination. One of the principles and rights included in the CRPD the right to equality and non-discrimination. Theoretically the purposes of the Disability Discrimination Act are to:
- eliminate discrimination against people with disability
- recognise the right to equality for people with disability
- recognise that people with disability share rights on an equal basis with others. The DDA was first introduced in 1992. There have been no major changes to it since 2009. It has now become clear that parts of the Act are not protecting people with disability from discrimination as well as they should.
Issues
Australians living with disabilities should be given the opportunity to learn and access accessible education, engage in the workforce, and participate in public life without discrimination.
PwMS-V welcomes the opportunity to make a submission to the Attorney-General’s Department We appreciate the consultation hope that our recommendations on how to strengthen and reform the Disability Discrimination Act (DDA) will result in the increased understanding and protection of disability rights, prevention of disability discrimination, increased accessibility and inclusivity for all, including people living with MS.
- The word “Disability” is a problem in its self. Inherent in its meaning is the sense of a lack of ableness – a lack of competence – a lack of value to the community – a burden on society. It might be better if the Act were entitled The Diversity Discrimination Act.
Sure some “Disabled people” might be a financial burden. Yet, many such people are a cultural asset. Many artists have mental “disabilities” but no one would question their value to society. I myself have had Multiple Sclerosis for more than 50 years I used two sticks for much of my working life and yet I successfully held senior executive roles and managed large teams of people Disability, in the sense it is used in the Act, may result from many different causes; injury, disease, accident, assault, age, physical or mental diversity. It is the “difference” from a perceived “normal” which causes discrimination in most instances. One might justifiably apply the term “disability” to the lack of ability some people show to accept or get on with people who are mentally or physically different
- Updating the definition of Disability It is recommended that the definition of disability be updated so it is easier to understand and be reformed from a medical model of disability to social and human rights models of disability. The current definition uses deficit-based language to refer to disability, eg: ‘malfunction’, ‘malformation’, ‘disfigurement’, ‘disturbed’ and ‘disorder. This language is
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harmful and reinforces punitive, negative stereotypes to define people with disabilities. Moreover, these outdated terms do not reflect our current understanding of disability..
Also the current definition of disability does not explicitly include people living with non visible disabilities. People living with MS can experience a wide range of symptoms and disability. Some use a wheelchair or mobility aid, and others live with symptoms that are not visible or obvious to others, eg; symptoms like fatigue, cognitive impairment, and heat sensitivity. (The same can be true of other neurological diseases including Parkinson’s disease, Huntington’s disease, and Motor Neurone disease. The definition of disability needs to be revised to explicitly include people living a non-visible disability.
Lastly, the definition of disability must be updated to recognise that many people may be affected by more than one type of discrimination, due to disability as well as their race, gender, sexual orientation, religion, or age for example.
- The Disability Discrimination Act is a ‘reactive’ and ‘complaints based’ law. It relies on organisations taking voluntary action to eliminate discrimination and on individuals making complaints. It requires action only in response to a complaint from a person who has been discriminated against. It places the burden on people living with a disability to identify discrimination, lodge a complaint, and prove that discrimination occurred.
This approach is time consuming and adversarial and places a significant emotional burden on participants, frequently dissuading them from pursuing resolution. It needs more focus on, and stronger mechanisms to ensure discrimination is prevented from occurring in the first place. Strengthening the DDA by placing the burden of proof on duty holders rather than asking people with disability to constantly prove they are being discriminated against is essential. The DDA needs to move to a proactive framework, where organisations, have a positive duty to prevent discrimination before it occurs. The cause of the discrimination is the discriminatory policy or practice of the organisation committing it. The discrimination is not caused by the unfortunate presence of the victim!
The Act should create a positive duty that requires organisations to take active steps to prevent disability discrimination and ensure that the burden for reducing discrimination is not always placed on people with disability. In terms of the scope of the positive duty, all public and private employers and their people conducting business, especially any individual with organisational management responsibility, should be required to proactively take preventative actions to eliminate discrimination by removing barriers and appropriately address discrimination.
Inclusive and accessible spaces, including businesses and workplaces, benefit everyone. The DDA should not exempt or include any exemptions for organisations of any size from the implementation of a positive duty to prevent disability discrimination (wherever that is physically possible).
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Unfortunately many older commercial and retail premises have a stepped access and in some instances it may not be physically or economically practical to remove the steps. The test of reasonableness should be physical and economical, not administrative or social.
To implement a positive duty and work towards preventing disability discrimination, PWMS proposes that duty holders engage people with disability to do the following:
e Conduct a needs assessment to identify and evaluate how the organisation does or does not meet the needs of people with disabilities, including reviewing the organisation’s existing policies and practices, identifying how potential gaps could be made more accessible and inclusive for people with disabilities.\
e Update and/or establish policies, procedures, and team member trainings that incorporate the with lived experiences of people with disability, including best practices and proposed timelines for receiving and appropriately handling disability discrimination complaints.
. Enhancing access to justice; There are court decisions that have made it more difficult for people with disability to prove that they have been discriminated against because of their disability. Because of this, the Disability Discrimination Act is not achieving its purpose of eliminating discrimination against people with a disability.
The Disability Discrimination Act currently requires a person with disability to establish the following factors to prove they have experienced direct discrimination: @ They have been treated less favourably than a person without disability in similar circumstances (the comparator test); and @ The treatment they experienced was because of the disability (causation).
It is entirely unreasonable to require a complainant to show that the discriminatory treatment they experienced was because of their disability. The discrimination may have been due to a generic policy and it was only coincidental that complainant happens to suffer from the particular disability. That does not make the discriminatory policy any more acceptable
Proving discrimination is currently too complex. it should be sufficient to prove that the
actions of the accused were deliberate and were discriminatory.
. It is essential to remove barriers for people who have been discriminated against because of multiple attributes. Various anti-discrimination Acts use different definitions of discrimination .
Many people with disabilities face discrimination because of their disability combined with other personal attributes, for example, their age, race or gender.
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Ageism is a common form of discrimination, often based on the existence, or an assumption of, disability. Ageism is generally dealt with under the Age Discrimination Act. Common Ageism issues are;
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talking down to an elderly person because it assumed they won’t understand adult language.
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Ignoring an elder person and addressing remarks about them to a younger person who happens be accompanying them. The Government should ensure that all Acts dealing with the prevention of discrimination adopt consistent definitions of discrimination. Having consistent definitions and processes would also make it easier and more efficient for businesses and other organisations to comply with these laws.
- Discrimination in Tourism, Travel and Associated Recreation The DDA in its current form does not sufficiently deliver on its obligations under the CRPD in Articles 30 and 19 Article 30– Participation in cultural life, recreation, leisure and sport; and Article 19- Living independently and being included in the community
The Disability Discrimination Act only prohibits discrimination in certain areas of public life. Areas of public life specifically mentioned in the act include:
a. Employment: Going to work or applying for jobs b. Education: (at any level) c. Access to buildings or other public places d. Goods, services and facilities e. Accommodation: Finding a place to live, having reasonable adjustments made; f. Buying land g. Joining clubs h. Playing sport In fact the Act is painfully silent when it comes to delivery of Tourism, travel and (non sporting) Recreation Services. And yet it is widely recognised that socialisation and recreation are very important when it comes to dealing with chronic conditions especially depression which is all too commonly associated with disability.
The DDA does not explicitly cover tourism, travel and recreation. This means people living with a disability are left vulnerable to systemic exclusion of services that are essential to wellbeing and social inclusion. Amending the DDA to explicitly include tourism, travel and recreation would directly implement Article 30 obligations, ensuring these are treated as rights, not optional extras.
No doubt the ability and the expectation of people with disabilities to travel have increased enormously since the Act was first proclaimed and this should be reflected in the updated
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Act. Aspects of travel and tourism are covered in the Act but they warrant a mention in the list of areas (from the Act) above. When people living with a disability are excluded from tourism, travel, and recreation, it breaches not only their right to leisure but also their right to full community inclusion. Strengthening the DDA to impose positive duties on tourism, travel and recreation providers would ensure people living with a disability are not excluded, but recognised as equal participants in community life.
The current situation Tourism, travel services in particular, have largely ignored needs of the disabled community. It is almost as if travel, tourism and enjoyment are seen as optional extras. And are not seen as something which the disabled community have as much right to as the rest of the community. I can illustrate this from personal and reported experience; (I have suffered from Multiple Sclerosis for more than 50 years. I am mentally competent but use a wheelchair, mobility scooter, and a wheeled walker. I have travelled extensively around Australia. I drive a vehicle which has been modified for entirely manual control)
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It is not uncommon to find accommodation venues which don’t have any rooms fitted out for disabled patrons but say. “you can have room (x), it is extra-large and can accommodate your wheelchair etc”. My wife and I have on occasions taken up such offers only to find that the shower is over the bath! Or there is a step into the shower!
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It is common to find that the main access to a hotel is via an impressive flight of steps. If one is in a wheelchair or on a scooter the only access is at the rear of the premises via the rubbish- bin area or the kitchens. My wife and have done this and then next morning when we wanted to go out early to have breakfast, with friends, we have found that the rear exit is locked!
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I have often heard of people, who are not disabled, booking “Disabled” hotel rooms because they are more spacious than the standard rooms.
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It is also quite common for people, who are not disabled, to occupy “Disabled” car- parking” spots; because they are close to the venue. None of these are issues which can be fixed by changing the Act or the regulations. However they are indicative of an indifferent attitude to disabled travellers which is possibly encouraged by the lack of attention to tourism and travel in the legislation. ========================== Another big issue is the design of tourist buses. Public transport buses in cities at least are generally “kneeling” so they are accessible by wheelchairs, mobility scooters, or walkers. However, tourist buses are almost invariably not kneeling. In fact they are normally the reverse and have a flight of steps at the front. There is no evident attempt to make them accessible. I was worried when writing this submission that my experience might be out of date, and I hoped that the situation may have improved. So before writing this I contacted a few tour
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companies offering Australian Outback or Australian Coastal experiences and asked them what tours they offered which could accommodate somebody with my disabilities.
Two major companies replied, and a third larger one has so far sent three interim replies
saying they are investigating the matter. (Perhaps they are worried what | am going to do
with the information)
Company One replied;
— When travelling with (EEE you are required to have a reasonable level of mobility and the ability to take part in the activities listed in our itinerary. Particularly with Boarding and descending from the coaches, helicopters and other modes of transport
requires reasonable strength, agility and balance. | am afraid we are also unable to
accommodate wheelchairs, mobility scooters or walkers due to limited storage space on board our coaches. Please let me know if you have any other questions
Company Two replied;
—_—— Unfortunately (:Ssvesssels are not equipped to accommodate passengers using mobility scooters or walkers. Due to the nature of our expeditions, including boarding via a gangway and participating in shore excursions that often involve uneven terrain, we are unable to safely facilitate guests who require these mobility aids. Additionally, our ships require all guests to be able to navigate stairs in the unlikely event of an emergency. The vessels also have fire-tight and water-tight doors throughout, and safe movement on board requires three points of contact when using stairways and moving between decks. These factors make our vessels unsuitable for mobility scooters or walkers.
| truly appreciate your interest in exploring with us and understand this may be
disappointing news.
Regrettably, we are unable to offer a suitable option for your travel needs.
Neither company offered any ability to accommodate a person with my disabilities on any of their standard tours. Moreover, neither company offers any tours designed for people with my disabilities Although there must be a market for such tours
Travel presentations
Geelong advertised a “Travel and Cruise Expo” on the 4“ of August 2025. It included 27 presentations by tour companies. These covered every imaginable form of tourist experience: coach tours, river cruises, ocean cruises, railway excursions, small boat cruises, etc, etc, etc. There was not one mention of “Accessible travel” nor of travel for people with disabilities. this seems extraordinary. There must be a market for travel by people with disabilities.
Travel advertising
In newspapers for example; The My wife and | subscribe to The Age newspaper; on
Saturday and Sunday, the 20“ and 215! Sep, It included two travel supplements which
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between them amounted to 100 pages of travel articles and adverts. Not once in the 100 pages was there any mention of “Accessible Travel”. Once again this seems extraordinary. There must be a market for travel by people with disabilities. In many cases the customers could also be seniors whose needs in many cases would resemble those of the disabled. And as I observe below some companies do the right thing although that is true of all too few. In Travel magazines for example; I have on my desk a magazine entitled “Travel without Limits”. It is a substantial document of over 100 pages and includes hundreds of articles about towns, cities, and country areas detailing the locations and activities which are accessible to people with disabilities. However, there is not a single advert by a tourism or travel company, no not one! There is not a single cruise, or tour, or coach trip or train trip advertised. No doubt because the industry does not feel any obligation to ofer services to people with any form of disability!! Some companies do the right thing In the few paragraphs above I have focussed on the problems and failures on the part of the tourism and travel industry to provided for people with disabilities. However, I do not want to give the impression that the entire industry is thoughtless and dismissive when it comes to people with disabilities. My wife and I have had positive experiences. We have done small ship cruises with a company where the crew members went out of their way to accommodate my abilities/disabilities. When conducting excursions off the ship to natural areas the crew would allow me to stay on the tender vessel. They then gave me (and a couple of other physically compromised passengers) a tour around the coastal/wet-land areas while the able passengers went for a guided walk. This did not require any substantial additional equipment on the company’s part. It only meant that one crew member was occupied taking us few around when he/she might have returned to the ship
Conclusions Re: Tourism and Travel
As I said above; the Act is painfully silent when it comes to delivery of Tourism, Travel and (non-sporting) Recreation Services. And yet it is widely recognised that socialisation and recreation are very important when it comes to dealing chronic conditions especially depression which is all too commonly associated with disability. I believe the illustrations I have set out show that there is indeed a problem of real discrimination in this area Tourism services in particular, it seems to me, have largely ignored needs of the disabled community. It is almost as if travel, tourism and enjoyment are seen as optional extras. As if when the Act was developed, they were not seen as something which the disabled community have as much right to as the rest of the community.
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I do not expect amending the Act to instantly make the problem go away and I recognise that some types of adventure tourism do not lend themselves to participation by people with disabilities. However, the Act should ensure that the tourism and travel industry
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Takes the needs of disabled people into account when planning programs.
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Makes a conscious effort to include disabled people whenever possible, and or
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Includes in their programs activities designed for people with disabilities.
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Makes conscious effort to ensure that people with disabilities are not treated as second class citizens and dismissed to entering facilities past the rubbish bins
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Makes an effort to ensure that facilities provided for people with disabilities are suitable and appropriately equipped for the people they are intended for; and
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Makes an effort to ensure that facilities provided for people with disabilities are in fact used by the people they are intended for
Overall Conclusions
I repeat my opening remarks the Disability Discrimination Act 1992, is now more than 30 years old. When originally introduced it was leading legislation, but it no longer adequately protects the human rights of people living with disabilities, across all areas of their lives. Australia has ratified the United Nations Convention on the Rights of Persons with Disabilities, which recognises equality and non-discrimination as fundamental rights. The regulatory framework for the Act, which includes the Disability Standards, is not strong enough and is difficult to enforce The Act must now be modernised to reflect these obligations and to ensure people living with a disability can participate fully, equally and freely in society. This is particularly true of the way in the act addresses, or doesn’t address, the delivery of travel and tourism services. Thank you for the opportunity to offer this submission.
Nigel Caswell BSc Hons, O.A.M. President, People with Multiple Sclerosis- Victoria.
22 Sep 2025
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