Modernising disability definition and improving access to justice | External submission

SUBMISSION TO THE REVIEW OF THE

DISABILITY DISCRIMINATION ACT 1992 (CTH)

Submitted by: Mei-Leng Hooi

Date: 15 October 2025

INTRODUCTION This submission is made to the Attorney-General’s Department in response to the public consultation process for the Review of the Disability Discrimination Act 1992 (Cth) (‘DDA’). The review seeks to ensure the DDA remains fit-for-purpose in protecting people with disability from discrimination and in implementing the recommendations of the Disability

Royal Commission.

This submission focuses on four key areas: the definition of disability, intersectional discrimination, the burden of proof for indirect discrimination, and access to justice. It also includes specific recommendations regarding assistance animals. The recommendations are

aimed at ensuring a more accessible and effective legislative framework.

UPDATING THE DEFINITION OF DISABILITY The review is considering updates to the definition of ‘disability’ to ensure it uses respectful language, recognises intersectionality, and aligns with current evidence-based classifications

of disability.

Discussion:

While the DDA’s existing definition of “disability” in section 4 is considered robust, specific,

and comprehensive, it requires modernisation to expressly incorporate “invisible disabilities”

to reflect recent medical advancements and international classifications. The current DDA

definition is already more inclusive than the CRPD’s definition, mitigating the need for a

fundamental alignment with the latter.

•  Formal  Recognition  of  Chronic  Pain:  The  World  Health  Organisation’s

International Classification of Diseases 11th Revision (‘ICD-11’), effective from 1

January 2022, formally reclassifies Chronic Pain as a distinct health condition (disease),

rather than merely a symptom. This global clinical shift provides a standardised,

verifiable basis for considering Chronic Pain conditions as constituting a permanent

disability under Commonwealth legislation. It is therefore legally imperative that the

current review of the DDA integrates the ICD-11 framework. This integration is

essential to ensure individuals with Chronic Pain diagnoses, including chronic primary

pain, fibromyalgia, and neuropathic pain conditions, are afforded the full protections

and substantive equity intended by the DDA

Critique of CRPD Alignment: Amending the DDA’s definition of disability to conform with the Convention on the Rights of Persons with Disabilities (‘CRPD’)

is not justified. The CRPD’s definition relies on subjective concepts of “long-term” and

“barriers,” which would create legal ambiguity, thereby providing greater opportunity

for challenges and appeals.

Recommendation 1.1: The definition of ‘disability’ in section 4 of the DDA should be

modernised to explicitly include “invisible disabilities,” specifically enumerating chronic

pain, fibromyalgia, and neuropathic conditions  in  line with contemporary medical

classifications such as ICD-11.

ADDRESSING INTERSECTIONAL DISCRIMINATION The DDA review has correctly identified that individuals with intersecting identities face

compounding forms of discrimination. The current legal framework, with its separate anti

discrimination laws and a narrow “comparator test,” can make it difficult to bring a claim of

discrimination on multiple grounds.

Discussion:

Intersectional discrimination occurs when a person is affected by multiple and compounding

forms of discrimination due to a combination of their identities, such as disability, race, gender,

or age. The DDA must be amended to explicitly address this, moving away from a fragmented,

single-attribute approach to a more holistic understanding.

Limitations of the Current Act: The current legal tests, particularly the “comparator test” for direct discrimination, are ill-equipped to handle intersectional claims. It is often

an artificial and complex task to identify a comparator who is in similar circumstances

but without the combination of protected attributes. This places an undue burden on the

applicant in a disability discrimination complaint.

Lessons from Other Jurisdictions: Legislation in other Australian jurisdictions, such as the Disability Inclusion Act 2024 (ACT), provides a model for explicitly defining

intersectionality and acknowledging that barriers to accessibility may be compounded

by multiple identities.

Recommendation 2.1: The DDA should be amended to include an explicit provision that

allows claims to be brought for discrimination on the basis of multiple or combined protected

attributes.

Recommendation 2.2: The Act should either amend or remove the “comparator test” for direct

discrimination and instead adopt a test that focuses on the unfavourable treatment or

detriment a person with disability has faced because of their disability or intersecting

identities.

BURDEN OF PROOF FOR INDIRECT DISCRIMINATION The DDA’s framework for indirect discrimination is confusing regarding where the burden of

proof lies, with the placement of the relevant provision, section 6(4), diminishing its

importance and clarity.

Discussion:

Section 6(4) of the DDA states:

“(4) For the purposes of subsection (3), the burden of proving that the requirement or

condition is reasonable, having regard to the circumstances of the case, lies on the

person who requires, or proposes to require, the person with the disability to comply

with the requirement or condition.“

The current location of this subsection can easily be overlooked. To ensure clarity and

accessibility, this crucial provision must be made more obvious. This would unequivocally

establish that the responsibility for justifying a potentially discriminatory requirement or

condition rests with the duty holder, not the person with the disability. This is a critical step

towards creating a more equitable legal process.

Recommendation 3.1: Section 6(4) of the DDA should be relocated and reframed as a new,

standalone section or a prominent sub-section within the indirect discrimination provisions.

Recommendation 3.2: The new section should explicitly state that the burden of proving that

a requirement or condition is reasonable in the circumstances rests with the person or

organisation imposing that requirement.

“CIRCUMSTANCES OF THE CASE” To ensure correct application of the ‘reasonableness’ test i.e. reasonable adjustment under

section 6 of the DDA, the phrase “having regard to the circumstances of the case” must

explicitly require consideration of the full circumstances affecting the person with the disability

and not be limited to the circumstances of the duty holder alone.

Discussion:

The current wording of the DDA does not explicitly recognise that circumstances of the person

with a disability, unrelated to the disability itself, may still impact on their ability to comply

with a requirement. The Act mandates a consideration of “the circumstances of the case” but

does not define what those circumstances are. This uncertainty can disadvantage people with

disabilities, particularly in complex situations. The DDA must be amended to make it clear that

the circumstances of all parties, including those broader, intersecting issues, are explicitly

recognised and considered. This should include circumstances such as family or domestic

violence, homelessness or other unforeseen circumstances impacting on the person with

disability. The onus of proving reasonableness, as discussed in the previous section, must also

remain with the organisation or person requiring the person with the disability to comply with

the requirement or condition.

Recommendation 4.1: The DDA should be amended to explicitly clarify that “having regard

to the circumstances of the case“ includes a full consideration of the circumstances of the

person with disability, particularly when those circumstances are not directly related to the

disability itself, but impacts on the person’s ability to cope with their disability.

Recommendation 4.2: The legislation should be drafted to unequivocally place the onus of

proving that a requirement or condition is reasonable on the duty holder.

IMPROVING ACCESS TO JUSTICE The review is considering topics related to improving access to justice, including addressing

discrimination within the justice system.

Discussion:

The DDA is undermined by a lack of accessible legal assistance. The rights and protections it

offers are rendered inaccessible when a person with disability cannot afford legal help,

understand complex legal processes, or prepare the necessary documents to lodge a complaint

or commence proceedings. This effectively nullifies the Act’s intended purpose.

Systemic Inaccessibility: Access to funding for self-represented litigants is fragmented and highly inaccessible. A personal lived experience demonstrated a systemic lack of

awareness, where a High Court of Australia staff member denied a “reasonable

adjustment“ and suggested she was not subject to the DDA, despite section 29 explicitly

covering Commonwealth instrumentalities.

Need for Explicit Provision: A dedicated ‘Funding’ or ‘Legal Assistance’ provision within the DDA is imperative to ensure the Act is effectively utilised. The concept of a

legal assistance certificate or similar mechanism has precedent in federal jurisdictions,

such as Rule 4.12 of the Federal Court Rules 2011 (Cth), which provides a

discretionary power to refer a self-represented litigant for legal assistance.

Proposed Framework: A new section in the DDA should create a framework for funding or legal assistance to support a person in:

o Making a complaint to the Australian Human Rights Commission (‘AHRC’).

o Commencing proceedings in the Federal Court of Australia or the Federal

Circuit and Family Court of Australia.

Mechanism for Assistance: This framework should include an application for a legal aid grant or a court-based referral certificate, as well as the ability and time to apply

directly to the Commonwealth Legal Financial Assistance Schemes in relation to a

matter. Furthermore, it is proposed that a dedicated ‘Disability Advocacy and Support

Division’ be established within the AHRC, modelled on the NDIS Appeals program, to

provide direct assistance with the drafting and lodgement of complaints, evidence

gathering, and a clear understanding of the conciliation process. This would provide a

proactive, expert pathway for pre-litigation support.

Recommendation 5.1: The DDA should be amended to include a dedicated ‘Funding’ or

‘Legal Assistance’ section to create a clear and explicit legal framework for legal support,

ensuring that the right to make a complaint or commence proceedings is not rendered

inaccessible due to an inability to afford legal assistance.

Recommendation 5.2: Increased DDA awareness and training must be provided across the

legal profession and broader public sector, particularly emphasising staff within tribunals and

court registries and Commonwealth instrumentalities, given their duties under section 29 of

the DDA.

Recommendation 5.3: A dedicated ‘Disability Advocacy and Support Division’ should be

established within the AHRC to provide expert pre-litigation assistance, including the

preparation and filing of complaints to the AHRC and the provision of advice to prospective

applicants in the commencement of court proceedings, to ensure equitable access to the DDA’s

protections.

A HUMAN RIGHTS ACT TO SUPPLEMENT THE DDA The DDA’s focus on prohibiting discriminatory acts may not provide a comprehensive,

enforceable “right” to non-discrimination. This gap has been highlighted in High Court of

Australia jurisprudence, where the absence of an explicit right can limit legal remedies.

Discussion:

The principle of non-discrimination is essential for procedural fairness within any judicial or

tribunal forum. For a litigant party with a disability (‘Disabled Litigant’), the failure to enforce

this principle directly within the courtroom poses a serious threat to their capacity to achieve

equality before the law.

The statutory limitation of the DDA is found in section 29, which makes discrimination

unlawful only in the ‘Administration of Commonwealth laws and programs’. This provision

covers a court’s administrative functions (e.g., registry access and general processes) but does

not extend to the core adjudicative functions exercised by a judicial or tribunal officer in

the courtroom, which rely heavily upon judicial discretion.

The High Court of Australia’s decision in Re East; Ex parte Nguyen [1998] HCA 73

concerning the Racial Discrimination Act 1975 (Cth) confirms that anti-discrimination

legislation does not confer a direct, legally enforceable right that can be actioned against a

judicial officer performing their judicial function. Consequently, when the Disabled Litigant’s

capacity for equal participation is contingent upon the ad hoc exercise of judicial discretion

and the goodwill of the opposing party, rather than a clear, codified anti-discrimination duty,

the risk is elevated that the ensuing order of the tribunal or court will result in a substantial

detriment to the Disabled Litigant’s substantive rights.

To address this limitation and bolster the protection of rights in adjudicative functions,

consideration should be given to the enactment of a standalone Human Rights Act in the

Commonwealth jurisdiction. Such an Act would not replace the DDA but would complement

it by establishing a clear legal entitlement to non-discrimination. This approach would provide

a stronger legal basis for seeking remedial orders against discrimination and would secure

procedural fairness before the law, thereby moving beyond the existing prohibition-based

statutory framework.

Recommendation 7.1: The Australian Government should develop and enact a new,

standalone Human Rights Act that establishes positive and enforceable rights for people with

disabilities. This Act should be designed to complement the DDA by providing a clear legal

entitlement to non-discrimination.

MODERNISING ASSISTANCE ANIMAL RULES The DDA review is explicitly considering how to update the rules regarding assistance animals,

including clarity on training and how to prove that an animal is an assistance animal.

Discussion:

The current framework is discriminatory and fails to recognise the diversity of disabilities and

support relationships. The rules must be broadened to be inclusive of different types of animals

and relationship support types.

Discrimination and Limited Scope: It is discriminatory to focus inclusion primarily on guide dogs for blindness while failing to recognise other types of disability, such as

psychosocial disability. The rules must be inclusive of various types of animals.

Emotional Assistance Animals and Training: For assistance animals, particularly those providing emotional support, the requirement for formal training or certification

is inappropriate and unnecessary. An emotional assistance animal should not be

required to conform to a training program that is not relevant to its supportive function.

Broadening Recognition: The definition of an assistance animal should be reformed to allow for any animal that provides necessary support to a person with disability,

regardless of breed, type, age, or formal certification status. This should also extend to

animals that are not desexed, given there is substantial evidence that the existence of

sex hormones supports health. The requirement for proof should prioritise a person

centred approach, such as verification from a treating medical professional and

certification that the person is suitable for the intended type of assistance animal

ownership, rather than mandated external certification of the animal.

Prevention of Cruelty: A person who has a criminal or civil history of cruelty to or abuse of animals or children should be ineligible to obtain an assistance animal.

Recommendation 6.1: The rules regarding assistance animals in the DDA must be updated to

explicitly recognise support provided to individuals with psychosocial disability and must be

inclusive of different types of animals and relationship support types.

Recommendation 6.2: For emotional assistance animals, the Act should remove mandatory

requirements for formal training or certification, as these requirements are discriminatory

and ignore the non-technical nature of emotional support.

Recommendation 6.3: The framework should be flexible enough to recognise any animal

that assists a person with a disability, focusing on the supportive function provided to the

individual, rather than adherence to strict training standards.

Recommendation 6.4: The DDA should include a provision that a person with a history of

cruelty to animals or children is ineligible for assistance animal ownership, ensuring the

safety of both animals and vulnerable individuals.

CONCLUSION I trust that these comments and recommendations are helpful in guiding the Australian

Government in its objective to make the DDA stronger and clearer. Significant discrimination

is still faced by people with disability. Reforms in the areas of disability definition, access to

justice, and assistance animals are necessary steps towards ensuring the Act is truly accessible

and fit-for-purpose.

Yours faithfully,