Reforms to the Disability Discrimination Act and beneficial interpretation

Re-thinking the Disability

Discrimination Act 1992 (Cth)

Submission to the review of the Disability Discrimination Act 1992 (Cth)

Emeritus Professor Ron McCallum AO and Fiona May Graney

18 October 2025

Table of contents

Re-thinking the Disability Discrimination Act 1992 (Cth)……..::ccssceceeeeeeeseeeeeeeeeeeeeeeeenees 1 7a 010) 0) 0 [Se eee rrr 4 Support for DRC recommendations. …………..cccccececeeeeeeeeeeeceeeeeeeeeeeeeeeeeeeaeeeeeeeeeseeeesseeeeses 4 Additional amendment ………….:cceeeeeeeeee eter eee eee e reader eee eee ee ee aaa eeeeeeaaeeeeeeeaaeeeeeeaaaeeeeees 5 Urgent need for refOr………. eee eee e eet tte errr etter ee ee etree rena ee esse aaeeeeeeeaeneeeeeaaaeeeeees 6 Origins of the DDA…….. i tn nn nn nee era tees ee aaieeeeeeeaaeeeeeeaae 7 Formal equality 20.0.0… ct nn nn eee eee ee nae eeee ee aaeeeeeeeaaneeeeeaaaeeeeees 8

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Objects (SECtION 3) 00… eect ee ti i rere ena e eee ee errr readiness eeaaieeeeeaeaeeeeeeeaaaeeeeees 11 A new beneficial interpretation PrOoviSiONn …………..:::cccceececeeeeceeeeeeeeeeeceeeeeeeeeeeeaneeeseneeeses 12 Definition of disability (SECtION 4) oo… eee eee ee eee e eee e terete eee eres essa eres eeaaeeeeeaaaeeeeees 13 Direct discrimination (SECTION 5)……. cece eeee eee e eterna eter ee ee eater eee eeee nese essai eeeeeeaaeeeeeeaaaeeeeees 15 Indirect discrimination (SECTION 6) 0.0… eee ececee cece eect ee teeter nae ee tees eae eeeesaaeeeeeeeaaaeeeeeeeaaaees 17 Unjustifiable Nardship………….. cece eee eee e etree eae e ee enna terres aeaeeeeeeeaaeeeeeeeaaneeeeeaaaeeeeees 18 A new positive duty ProviSiOn……………ccccceeeeeceeeeeceeeeecaeeeecaeeeeseaeeeeeaeeeeeaeeeeeeeeeeseeeeeneeeeenes 20 A new standalone duty to provide adjustment …………..cccceeeeeeeeeeeeeeeeeeeeeeeeeeeaaeeeeeeeeaaeees 22 Addressing intersectionallity ..0………ccceeccceeeee cece teeter ee ee etree ee aa ee eeeeeeaaeeeeeaeaaeeeseeaaaeeeeeeeaaeees 27 Inherent requirements (SeECtiION 21A) ……. cece cece eee teeter ee ae eee tees eae eeeeseaeeeeeeeaaaeeeeeeeaaaees 28

esto [U(er~ | 1(e) am (<s~1611(0)] 9-9 eee 30

Services provided by police officers (SeECtION 24)……. i eeeeeccte cece ee teeeeeeeeaaeeeeeeeaaeeeeeeaae 32 Disability standards (SECtION 31)… ieee eee e teeter reese ae ee rete eee eres eeaaieeeeeeeaaeeeeeeaaeeeeeees 37 A new offensive behaviour ProviSiON …………..0ccccceeececeeeeeceeeeeeeeeeeeeeeeeeaeeeeeeeeeesneeeneeeeeses 39 A new Vilification PrOVISION …………..cccceeeeeneeeeeeeeeeee cece cae eecaeeeeeeceeeeeaeeeesaeeeeseeeeeseneeeseeeeses 40 EX@MPtiOns ………..ccccceececceececceeee eee cece ee eeeeaeeeeeaeneeeaaeeeeaaceeesaageesaeeesaaeeesseeeeseeeeseeeeeseeeeeses 40 Special measures (SeECtION 45) ooo… eee eter tere reenter eee eee asada eres eeaaeeeeeeaae 41 Superannuation and insurance (SeECtION 46) …… eee cece cece teeter teen entree tena eres eeaaneeeeeaaee 42

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Migration (SCCtION 52) oo… cele ieee ttt terre nee ee ender teen denne eee aeieeeeeeeaaieeeeeeeaaneeeeeaaaeeeees 43

Assistance animals (SECtION 54A) 00… ce eeceee eee ee eee e ee ee teeter aa eee eeeeaaeeeeesaaaeeeeeeaaaeeeeseeaaaees 44 Temporary exemptions (SeCtiION 55) .0…. cee ieee cere etter reenter eterna ee esse ane eeeeeeaaeeeeeeaae 46 Action plans (S@CtION 64)………..ccceeee cece eee ee rete ee tte e eee ee tere ee aae eres eeaaeeeeeaaaaeeeeeeaaaeeeeeeeaaeees 46 Further matters for CONSIAeratiOn …………e ce ceeeee cece ee ntee eee e eee e eter ee eeee tree sean eeeeeeaaeeeeeaaeeeeeees 47 External affairS DOWED ………….ccccccececceeeeeeeeeeeeaeeeeeaeeeeeaaeeeeaaeeecaeeeseaeeeesaeeeesaeeeeseeeeeseneeeses 47 CRPD terminology ………..ce ee eeeeee teeter eee ener reenter eee ee ne sees aaa eeeeeeaaieeeeeeeaeeeeeeeaaaeeeeees 48 Legislative CxAMPIES…….. ccc ttt ee reer eee ered eee eee aae rete aaa nese sean eeeeeeaaneeeeeaaaeeeeees 48 Guidance materials ………… ccc cece etter eee eee eee nae e eee eee ee enna eeeeeeaaeeeeeaeaaeeeeeeaaeeeeeees 50 Harmonisation of federal, state and territory statutes …….0… eect ee eeeeeeeeeeeeeeaneeeeeees 50 Remedies and Cost 0.0.0… ceececcee eee e eee nee ee eee eee nae e reese nae eeeeaeaeeeeeeeaaeeeeeeeaaeeeseeaaeeeeees 51

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About us

We write this submission in our capacities as two legal professionals with lived experience of disability.

Emeritus Professor Ron McCallum AO is an Australian legal academic. Professor McCallum has been totally blind since birth. Professor McCallum served as professor and dean of law at the University of Sydney. He was the first totally blind person to be appointed to a full professorship, and deanship, in any field at any university in Australia or New Zealand. Professor McCallum served as Chair of the first United Nations Committee on the Rights of Persons with Disabilities. Professor McCallum was a special

advisor to the Disability Royal Commission.

Fiona May Graney has been a solicitor for fifteen years. She has been severely deaf since early childhood. She has worn two hearing aids since she was two years of age. She has worked as a government lawyer for federal and state governments, including the

NSW Parliamentary Counsel’s Office, Child Abuse Royal Commission and Disability

Royal Commission.

We are delighted to have this opportunity to suggest reforms to the federal Disability Discrimination Act 1992 (Cth) (DDA). We note that state and territory anti-discrimination

legislation falls outside of the scope of this review.

Support for DRC recommendations

We express our full support for the 15 recommendations of the Disability Royal Commission relating to the DDA. These recommendations concern:

° the definitions of direct and indirect discrimination’ ° the duty to provide adjustments for persons with disabilities? ° a new positive duty to eliminate disability discrimination?

’ Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.23 and 4.24).

2 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.25 and 4.26).

3 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.27 and 4.28).

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° offensive behaviour and vilification’

° the migration exemption® ° unjustifiable hardship® ° consistency between the Disability Discrimination Act and the United Nations

Convention on the Rights of Persons with Disabilities’

° suspension or exclusion of students with disability®

° the factors considered by prospective employers when determining if a prospective employee can carry out inherent requirements of the job?

. the definition of ‘services’ as it applies to police officers.’°

Additional amendments

We also express our agreement with several of the additional reforms highlighted in the Issues Paper, with respect to:

° the definition of disability“

° addressing intersectionality’ . exemptions’® ° assistance animals‘

4 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.29 and 4.30).

5 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.31).

§ Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.32).

7 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.33 and 4.34).

8 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 7.2).

® Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 7.26).

10 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 8.19).

11 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

21 to 26.

12 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

27 to 28.

13 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

74 to 80.

14 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

82 to 86.

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. action plans’® . the enforceability of the Disability Standards ’® ° other ways to modernise the Disability Discrimination Act.”

Urgent need for reform

The DDA is in urgent need of reform. The DDA is 33 years old.

Most importantly, the DDA pre-dates the United Nations Convention on the Rights of Persons with Disabilities (CRPD).

When the DDA commenced in 1992, the CRPD did not yet exist. The CRPD and its Optional Protocol opened for signature in 2007. Australia became one of the original signatories. The CRPD entered into force for Australia on 16 August 2008. The Optional Protocol entered into force for Australia in 2009.’8

Amendments to the DDA to date have failed to properly incorporate the CRPD.

Many thousands of submissions have been made by stakeholders, including to the

Disability Royal Commission’?, Parliamentary Joint Committee on Human Rights,

Productivity Commission, and 5-yearly reviews of Disability Standards.”°

Many of the following proposed amendments have been long advocated for by persons with disabilities and advocacy organisations and we acknowledge their tireless efforts.

Reform is overdue. The DDA must be prioritised and modernised by the Australian

Government as soon as practicably possible.

15 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

87 to 88.

16 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

89 to 92.

17 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

93 to 95.

18 Australian Human Rights Commission, United Nations Convention on the Rights of Persons with Disabilities, AHRC website, accessed 14 September 2025.

19 Disability Royal Commission, Executive Summary, Final Report, 2023, page 39. The Disability Royal

Commission held 32 public hearings and two ceremonial sittings, conducted more than 700 engagement activities, received 7,944 submissions, and held 1,785 private sessions.

20 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, page 17.

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Origins of the DDA

The origins of the DDA can be traced back to the American civil rights movement.

The American civil rights movement became the catalyst for international efforts to

address forms of discrimination.

The Convention on the Elimination of All Forms of Racial Discrimination 1966 was one of the first human rights treaties to be adopted by the United Nations. Australia ratified

that Convention on 30 September 1975.2’ The Australian Government then passed Australia’s first federal anti-discrimination law, the Racial Discrimination Act 1975 (Cth).

Sex discrimination legislation followed a similar trajectory. The feminist movement led to the declaration of 1975 as International Women’s Year. This culminated in the International Convention on the Elimination of All Forms of Discrimination against Women, which was adopted in 1979 by the United Nations General Assembly and entered into force on 3 September 1981. Australia signed that convention on 17 July 1980 and ratified iton 17 August 1983.2 The Australian Government then passed the Sex Discrimination Act 1984 (Cth).

The DDA was the result of the tireless efforts of the disability rights movement. In 1971, the Declaration on the Rights of Mentally Retarded Persons was proclaimed by the United Nations General Assembly. In 1975, further rights were identified in the Declaration on the Rights of Disabled Persons. The United Nations declared 1981 to be

the International Year of Disabled Persons. The United Nations created the World

Programme of Action Concerning Disabled Persons and declared the Decade of Disabled Persons to run from 1983 to 1992. In 1986, the Australian Government established the Human Rights and Equal Opportunities Commission (now the Australian

Human Rights Commission). The Australian Government also passed the Disability

Services Act 1986 (Cth).

21 Australian Human Rights Commission, The International Convention on the Elimination of All Forms of

Racial Discrimination, AHRC website, accessed 14 September 2025.

22 Australian Human Rights Commission, The Convention on the Elimination of All Forms of Discrimination

against Women (CEDAW): Sex Discrimination - International Activities, AHRC website, accessed 14 September 2025.

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In 1990, the Congress of the United States enacted the Americans with Disabilities Act.

After commissioning important reports from Chris Ronalds?? and Maureen Shelley,** the Australian Government marked the end of the Decade of Disabled Persons with the introduction of the Disability Discrimination Bill 1992 (Cth).

The Deputy Prime Minister and responsible Minister, the Honourable Brian Howe MP,

said in his second reading speech: Our vision is a fairer Australia where people with disabilities are regarded as equals, with the same rights as all other citizens, with recourse to systems that redress any infringements of their rights; where people with disabilities can participate in the life of the community in which they live, to the degree that they wish; where people with disabilities can gain and hold meaningful employment that provides wages and career opportunities that reflect performance; where control by people with disabilities over their own bodies, lives and future is assumed and ensured; where difference is accepted, and where public

instrumentalities, communities and individuals act to ensure that society accommodates such difference.

Only then will we be able to say that justice has been achieved.?5

Formal equality

When the DDA was enacted in 1992, its primary concern was to ensure formal equality for persons with disability. The objective was for persons with disability to be treated the

same as persons without disability.

However, the concept of formal equality has not greatly assisted most persons with disability. Formal equality fails to accommodate the differences brought about by the physical, sensory and cognitive differences which are the essence of disability.

Over the last three decades, much academic work has been undertaken on the concept of equality.2° Commentators have pointed out that formal equality, of itself, often does not

23 See: Chris Ronalds, National Employment Initiatives for People with Disabilities: A Discussion Paper,

AGPS, 1990. See also: Chris Ronalds, National Employment Initiatives for People with Disabilities: Report of the National Consultations with People with Disabilities, Final report, 1991.

24 Maureen Shelley, Report of the National Consultations with People with a Disability, Final report, Disability Advisory Council of Australia, 1991.

25 Brian Howe (Minister for Health, Housing and Community Services), Disability Discrimination Bill, Second

reading speech, 26 May 1992.

26 See: Sandra Fredman, ‘Discrimination Law’, Clarendon Law Series, Second edition, Oxford University

Press, 2012 and Hugh Collins, ‘Discrimination, Equality and Social Inclusion’, (2003) 66 The Modern Law Review, 16.

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assist persons with disability who usually require different treatment in the form of adjustments.?’ The scope and meaning of substantive equality remains elusive.?° For Professor Sandra Fredman, substantive equality can best be understood through the lens of a four dimensional framework. She writes: Firstly, the right to substantive equality should aim to redress disadvantage. Second, it should counter prejudice, stigma, stereotyping, humiliation and violence based on a protected characteristic. Third, it

should enhance voice and participation, countering both political and social exclusion. Finally, it should

accommodate difference and achieve structural change.7°

CRPD

The CRPD represents a paradigm shift for persons with disability. The purpose of the CRPD is:

…[T]o promote, protect and ensure the full and equal enjoyment of all human rights and fundamental

freedoms by all persons with disabilities, and to promote respect for their inherent dignity.*°

Professor Gerard Quinn, United Nations Special Rapporteur on the rights of persons with

disabilities, writes:

The adoption of the Convention was a watershed moment in international law. Anchored on personhood and equality, it fundamentally resets disability law and public policy for the twenty-first century. It embodies the culture shift to the human rights framing of disability and consigns the old paradigm of charity and welfare to history. It is an eloquent statement of the human rights frame in the specific context of disability. It promises to restore voice, choice and control to persons with disabilities who have

been treated as objects of care for too long.*’

The CRPD offers much greater protections for persons with disabilities than the DDA.

27 Sandra Fredman, ‘Substantive Equality Revisited’ (2016)14 (3) International Journal of Constitutional Law, 712. This article has given rise to subsequent articles where Catharine MacKinnon has engaged in a lively debate with Sandra Fredman. See: Catharine A MacKinnon, ‘Substantive Equality Revisited: A Reply To Sandra Fredman’, (2016) 14 (3) International Journal of Constitutional Law, 739.

28 Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14 (3), International Journal of Constitutional Law, 712

229 Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14 (3), International Journal of Constitutional Law, 712, p 727.

30 Convention on the Rights of Persons with Disabilities (New York, 13 December 2006) [2008] UNTS 2515, Article 1.

31 Professor Gerard Quinn, Report of the Special Rapporteur on the rights of persons with disabilities, A/HRC/46/27, (19 January 2021), p 11.

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For example, the broad prohibition of disability discrimination, in article 5 of the CRPD,

differs from the much narrower prohibition of disability discrimination under the DDA.

Article 5 of the CRPD prohibits discrimination in all aspects of public life. The DDA only forbids discrimination in specific areas, such as work, education, goods and services.

The CRPD also protects more persons with disabilities than the DDA. The CRPD contains a very broad and inclusive definition of persons with disabilities: Persons with disabilities include 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.4

The definition of disability in the DDA is much narrower.

The CRPD acknowledges multiple and intersectional discrimination, by giving persons with disability ‘equal and effective legal protection against discrimination on all grounds.’** It not only protects persons with disability from disability discrimination, but from discrimination on other grounds, such as sex or race.*4 The DDA does not currently

acknowledge intersectional discrimination.

Article 5(2) of the CRPD prohibits all behaviour which amounts to discrimination. The DDA only prohibits direct and indirect discrimination if they meet the tests set out in sections 5 and 6 of the DDA.

The CRPD offers much better protections for persons with disabilities than the DDA.

32 Convention on the Rights of Persons with Disabilities (New York, 13 December 2006) [2008] UNTS 2515, Article 1.

33 Convention on the Rights of Persons with Disabilities (New York, 13 December 2006) [2008] UNTS 2515, Article 5(2).

34 At the federal level, different attributes are protected by different federal statutes. This is an important point of more than mere lesser coverage by the DDA. It highlights that the DDA is something quite different, and lesser in itself. It is not a general rights charter for people with disability. It is concerned only with one right that people with disability have: non-discrimination. This reflects the fact that its genesis was pre CRPD and modelled on the Sex Discrimination Act 1984 (Cth).

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Objects (section 3)

We support the Disability Royal Commission’s recommendation to amend the objects of the DDA to include the CRPD.*

The objects are contained in section 3 of the DDA. This provision was drafted in 1992

and has never been amended.

The objects of an Act are important as they assist the court and others with the interpretation of the Act.

For example, in the High Court case of Purvis v New South Wales**, the court closely considered the objects of the DDA.?” Gummow, Heydon and Hayne JJ commented:

No doubt the statute must be construed as a whole. No doubt, also, it must be construed having regard

to its evident objectives, stated, as they are, in s 3 of the Act…% Gleeson CJ commented:

In identifying and considering the basis of, and/or the legitimacy of, a decision, for the purpose of measuring the conduct of an alleged discriminator against the requirements of the Act, it is proper, and may be necessary, to have regard to the objects of the Act as defined in s 3, and to the scope and purpose of the legislation.*° We agree with the Disability Royal Commission’s recommendation to amend the objects section of the DDA to recognise Australia’s obligations under the CRPD.

We note that section 3 of the Disability Services and Inclusion Act 2023 (Cth) specifies that one of the objects of the Act is to ‘in conjunction with other laws, give effect to the Convention on the Rights of Persons with Disabilities.’*°

35 Disability Royal Commission, Realising the human rights of people with disability, Final Report, 2023, Volume 4 (Recommendation 4.33).

36 Purvis v New South Wales [2003] HCA 62.

37 Purvis v New South Wales [2003] HCA 62 at [14], [44], [87], [88], per Gleeson CJ and [195], [292], [271] per Gummow, Heydon and Hayne JJ.

38 Purvis v New South Wales [2003] HCA 62 at [195] per Gummow, Heydon and Hayne JJ. 38 Purvis v New South Wales [2003] HCA 62 at [14] per Gleeson CJ. 40 Disability Services and Inclusion Act 2023 (Cth), s 3.

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A new beneficial interpretation provision

We support the Disability Royal Commission’s recommendation to include a new beneficial interpretation provision in the DDA.*“

The Disability Royal Commission recommended a new beneficial interpretation provision

to ensure that the DDA is interpreted in a way that is beneficial to persons with disability. 42

We note that the Australian Capital Territory government inserted a new ‘beneficial interpretation’ provision‘? following a recommendation from the ACT Law Reform Advisory Council. “4 In making the recommendation, the Law Reform Advisory Council noted that:

Courts and tribunals have typically adopted a narrow approach to interpreting anti discrimination law, despite the requirements of the Legislation Act 2001 (ACT) and equivalent legislation in other jurisdictions. The resulting failure to promote the anti-discrimination law’s beneficial purpose may have disadvantaged existing complainants and discouraged potential complainants.*®

In presenting the amendment Bill, the Attorney General Mr Simon Corbell MLA explained:

The bill includes a new explicit requirement that the act be interpreted in a way that is beneficial to people who have protected attributes to the degree that the interpretation is consistent with the objects

of the act, the Human Rights Act and other rules of legislative interpretation.

This provision will encourage people applying the act, including the ACT Civil and Administrative Tribunal, to do so in keeping with its spirit—that is, to support vulnerable or marginalised members of society to enforce their rights not to be arbitrarily excluded from society because of discrimination. The

act should not be interpreted narrowly or in a way that restricts the exercise of the rights in it.46

41 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.34).

42 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.34).

43 Discrimination Act 1991 (ACT), section 4A.

44 ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT), Final Report, 18 March 2015, Recommendation 1.

45 ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT), Final Report, 18 March 2015, page 23.

46 Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 8 June 2016, 1842 (Simon Corbell, Attorney-General).

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We consider that a beneficial interpretation provision would similarly aid in the overall

interpretation of the DDA. Definition of disability (section 4)

We agree with the additional anendment proposed by the Issues Paper to amend the definition of disability in the DDA.

The definition of disability is contained in section 4 of the DDA, which states: “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.

This definition has only been amended once, in 2009,4” based on a recommendation contained in the 2004 Productivity Commission report.*®

47 Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth).

48 Productivity Commission, Review of the Disability Discrimination Act 1992 (Cth), Inquiry Report, 2004, at Recommendation 11.1.

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We note that the definition in the DDA uses negative and offensive language, with terms

like ‘malfunction’, ‘malformation’, ‘disfigurement’ and ‘disturbed’.

Article 1 of the CRPD contains the following broad and inclusive definition of disability:

Persons with disabilities include 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.

This definition of persons with disabilities adopts the social model of disability.49 The social model recognises that disability ‘is an evolving concept’, and that persons with impairments are often prevented from exercising their human rights and fundamental

freedoms by social, attitudinal and environmental barriers.°°

In General Comment No. 6, the Committee on the Rights of Persons with Disabilities

expressed concern about continued application of the medical model:

The Committee is concerned that the laws and policies of States parties still approach disability through charity and/or medical models, despite the incompatibility of those models with the Convention. The persistent use of such paradigms fails to acknowledge persons with disabilities as full subjects of rights

and as rights holders.*“

We note that the recent Disability Inclusion Act 2024 (ACT) and the Disability Rights, Inclusion and Safeguarding Act 2024 (TAS) define disability in accordance with the social model. In the Australian Capital Territory:

disability—

(a) means any impairment or functional limitation that, in interaction with a barrier to accessibility,

hinders the full and equal participation of a person with disability in society; and

(b) includes an impairment or functional limitation—

49 Emeritus Professor Ron McCallum AO, The United Nations Convention on the Rights of Persons with

Disabilities: An Assessment of Australia’s Level Of Compliance, Research publication for the Royal

Commission into Violence, Abuse and Exploitation of People with Disability, October 2020, p 10.

5° Emeritus Professor Ron McCallum AO, The United Nations Convention on the Rights of Persons with

Disabilities: An Assessment of Australia’s Level Of Compliance, Research publication for the Royal

Commission into Violence, Abuse and Exploitation of People with Disability, October 2020, p 10.

51 Committee on the Rights of Persons with Disabilities, General Comment No.6 (2018) on equality and non-discrimination, 19° session, UN Doc CRPD/C/GC/6, (6 April 2018)

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(i) that is permanent, temporary or episodic in nature; and

(ii) whether or not it can be noticed by others.*? In Tasmania:

disability, in relation to a person, includes long-term physical, mental, cognitive, intellectual or sensory impairments which in interaction with various barriers may hinder the person’s full and effective participation in society on an equal basis with others®? We agree with the proposed additional amendment in the Issues Paper that the Australian Government should amend the definition of disability in the DDA.

Direct discrimination (section 5)

We agree with the Disability Royal Commission’s recommendation to amend the test for direct discrimination in the DDA. This amendment involves removing the current ‘comparator’ test, replacing it with a ‘detriment’ test and shifting the relevant burden of proof.

The test for direct discrimination currently requires a person with disability to establish that because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in

circumstances that are not materially different.°*

The Disability Royal Commission found that this comparator test is complex and difficult

to use.

The Disability Royal Commission recommended removing the comparator test and focusing on whether a person has been treated unfavourably because of their disability,

known as the ‘detriment test’.

The AHRC has also raised concerns that the comparator test results in uncertainty and impracticality for persons with disabilities.°° The AHRC has argued that the comparator test may limit Australia’s ability to effectively implement its obligations under articles 5(1)

2 Disability Inclusion Act 2024 (ACT), Dictionary. 53 Disability Rights, Inclusion and Safeguarding Act 2024 (TAS), s 5. 54 Disability Discrimination Act 1992 (Cth), s 5(1).

55 Australian Human Rights Commission, Response to Employment Issues Paper, 24 September 2020

[EXP.0063.0001.0001].

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and 13 of the CRPD, particularly the duty to eliminate barriers that may prevent persons

with disabilities from gaining access to all of the protections of the law.%©

Many reviews into Australian anti-discrimination law have recommended adopting the detriment test. See, for example, the NSW Law Reform Commission in 19999’, Productivity Commission in 200458, Senate Standing Committee on Legal and Constitutional Affairs in 2008°°, Attorney General’s Department in 2011°°, Queensland

Human Rights Commission®’, and Law Reform Commission of Western Australia in

2022°.

Victoria and the Australian Capital Territory have both adopted the detriment test in their anti-discrimination legislation. In Victoria:

Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute

unfavourably because of that attribute.®* In the Australian Capital Territory:

… [A] person directly discriminates against someone else if the person treats, or proposes to treat,

another person unfavourably because the other person has 1 or more protected attributes. ®*

We agree that the provisions in the Victorian and Australian Capital Territory statutes are simpler and easier to apply.

The Disability Royal Commission also recommended that the DDA be amended to shift

the burden of proof so that a respondent would need to prove that the reason for the

56 Australian Human Rights Commission, Response to Employment Issues Paper, 24 September 2020

[EXP.0063.0001.0001].

57 New South Wales Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW), Report

No. 92, 1999.

58 Productivity Commission, Review of the Disability Discrimination Act 1992 (Cth), Inquiry Report, 2004.

59 Senate Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984 in Eliminating Discrimination and Promoting Gender Equality, Report, 2008.

69 Attorney-General’s Department (Cth), Consolidation of Commonwealth Anti-Discrimination Laws: Discussion Paper, Australian Government, 2011.

61 Queensland Human Rights Commission, Building belonging: Review of Queensland’s Anti-Discrimination

Act 1991, Final Report, 2022.

62 Law Reform Commission of Western Australia, Review of the Equal Opportunity Act 1984 (WA) — Project 111, Final Report, 2022.

63 Equal Opportunity Act 2010 (Vic), s 10(1). 64 Discrimination Act 1991 (ACT), s 8(2).

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treatment was not because of the person’s disability. We note that this is similar to the presumption set out in section 361 of the Fair Work Act 2009 (Cth). A person with disability does not have access to a respondent’s facts or reasons for a decision. We support the Disability Royal Commission’s recommendation to shift the burden of proof to

the respondent.

Indirect discrimination (section 6)

We support the Disability Royal Commission’s recommendation to remove the ‘reasonableness’ element from the test for indirect discrimination and focus consideration

on the exception of unjustifiable hardship.

The current definition of indirect discrimination is contained in section 6 of the DDA and consists of the following elements:

e aperson is required to comply with a requirement or condition,

e the person does not or would not comply, or is not able or would not be able to

comply with the requirement or condition, e the condition or requirement disadvantages persons with disabilities,

However, the condition or requirement is not indirect discrimination if it is reasonable having regard to the circumstances of the case (reasonableness element).

Currently, under the DDA, the respondent would not be found to have indirectly discriminated against a person if they can show that a requirement or condition they imposed upon a person was reasonable having regard to the circumstances of the case.® Further, even if a condition is found to be unreasonable, the respondent may

additionally rely on unjustifiable hardship provisions.

The Disability Royal Commission stated that there should be a closer examination of the reasonableness element in indirect discrimination, and unjustifiable hardship, to remove

what appears to be several layers of exceptions or defences.®

We also agree with the additional anendment proposed in the Issues Paper that the

‘inability to comply’ requirement should be removed.

65 Disability Discrimination Act 1992 (Cth), s 6(3).

6 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023, p 304.

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The Australian Human Rights Commission and Queensland Human Rights Commission

have said that the ‘inability to comply’ requirement is unnecessary and confusing.®’

The Australian Human Rights Commission and other stakeholders have expressed that removing the inability to comply requirement also would simplify the definition of indirect

discrimination.®®

The inability to comply requirement provides that a person with disability ‘does not or would not, or is not able or would not be able to’ comply with a requirement or condition

imposed upon them in order to satisfy the test for indirect discrimination.®

While the Racial Discrimination Act contains a similar requirement, the Age

Discrimination Act and Sex Discrimination Act do not include this requirement. ”°

We also agree that the ‘inability to comply’ requirement should also be removed.

Unjustifiable hardship

We agree with the Disability Royal Commission’s recommendation to add new additional factors when considering whether a specific adjustment would impose unjustifiable hardship on duty holders.”

Unjustifiable hardship is a defence under the DDA against a finding of disability

discrimination.

The DDA currently provides that a duty holder is not required to make reasonable adjustments for a person with disability if the adjustments would impose unjustifiable hardship.

87 Australian Human Rights Commission, Free and Equal: An Australian Conversation on Human Rights,

Australian Government, 2021, pp 296-297; Queensland Human Rights Commission, Building belonging: Review of Queensland’s Anti-Discrimination Act 1991, Final Report, 2022, pp 98-101.

68 Australian Human Rights Commission, Free and Equal: An Australian Conversation on Human Rights,

Australian Government, 2021, pp 296-297; Queensland Human Rights Commission, Building belonging: Review of Queensland’s Anti-Discrimination Act 1991, Final Report, 2022, pp 98-101.

69 Disability Discrimination Act 1992 (Cth), ss 6(1)(b) and 6(2)(b). 70 Racial Discrimination Act 1975 (Cth), s 9(1A)(b).

™ Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023, p 337.

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The DDA provides that all the relevant circumstances of a particular case should be considered when determining whether an adjustment would impose unjustifiable hardship, including the following factors:

e benefit or detriment to any person concerned

e the effect of the disability

e the financial circumstances, and likely expenditure

e the availability of financial and other assistance, or e any relevant action plans.”2

The Disability Royal Commission recommended that two additional factors be included. These factors are:

e the extent of consultation with any person with disability e available alternative measures to eliminate or reduce hardship.”?

The Disability Royal Commission also recommended requiring duty holders to document

factors considered and give reasons.”4

We agree with the Disability Royal Commission that the inclusion of additional factors in applying the unjustifiable hardship test would encourage greater engagement between duty holders and persons with disabilities and help ensure that any decisions are informed by accurate advice about the person’s situation and particular adjustments.

We also agree that the introduction of a requirement to make and retain detailed

documentation would increase accountability and transparency.

We note the proposal in the Issues Paper that an alternative option to implement this recommendation could be to draft a new definition of unjustifiable hardship.

We consider this to be a matter best left to the relevant legislative drafters drafting the

amendments, as long as the overall intent is captured.

72 Disability Discrimination Act 1992 (Cth), s 11.

73 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023, p 337.

74 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023, p 337.

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A new positive duty provision

We support the Disability Royal Commission’s recommendation to include a new positive

duty to eliminate discrimination.”°

The Disability Royal Commission recommended the introduction of a new positive duty on all duty holders, modelled on the duty in the Sex Discrimination Act.’6

The DDA does not currently impose any duties on duty holders to take steps to proactively eliminate disability discrimination.

A positive duty would shift the emphasis from a reactive, complaints-based model to one where duty holders would be required to proactively assess their compliance with their

obligations and ensure persons with disabilities are not being subjected to discrimination.

A positive duty would require a duty holder to take reasonable and proportionate measures to eliminate, as far as possible, discrimination against persons with disabilities and enable the Australian Human Rights Commission to act if the duty holder is not

taking appropriate steps to address discrimination.

Positive duties have been implemented in several federal, state and territory statutes in

recent years.””

In 2022, the Australian Government introduced a positive duty in the Sex Discrimination Act that requires employers and people conducting a business or undertaking to take reasonable and proportionate steps to eliminate, as far as possible, sex discrimination, sexual harassment and related unlawful conduct occurring in connection with work, as far

as possible.”®

The positive duty is enforced by the Australian Human Rights Commission, who was provided with a suite of regulatory powers in the Australian Human Rights Commission

75 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.27 and 4.28).

76 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.27 and 4.28).

77 For example, positive duty provisions now exist in the Anti-Discrimination Act 1992 (NT), Discrimination Act 1991 (ACT) and the Equal Opportunity Act 2010 (Vic).

78 Sex Discrimination Act 1984 (Cth), s 47C.

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Act to enforce compliance, including the ability to issue compliance notices and enter into

enforceable undertakings.

The Disability Royal Commission recommended that a positive duty in the DDA should extend to eliminating all forms of disability discrimination and be based on the

amendments to the Sex Discrimination Act.’9

Notably, the Disability Royal Commission recommended that the positive duty apply to all duty holders under the DDA. This would be wider than the duty in the Sex Discrimination Act, which is tailored to workplaces and applies only to employers and people conducting

a business or undertaking.®°

Numerous reviews and inquiries into Australian anti-discrimination legislation have recommended changes to Commonwealth, state and territory anti-discrimination

legislation to include a positive duty.®“ Positive duties are also prevalent in international anti-discrimination legislation.®4 The arguments to support a positive duty are clear.

Individual complaints offer individual redress but are not a mechanism for addressing

systemic discriminatory practices.®°

A positive duty shares responsibility for giving effect to anti-discrimination law between an individual complainant and people and organisations who have a duty to not

discriminate.®

79 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.27 and 4.28).

80 Sex Discrimination Act 1984 (Cth), s 47C.

81 Queensland Human Rights Commission, Building belonging: Review of Queensland’s Anti-Discrimination

Act 1991, Final report, July 2022; Department of the Attorney-General and Justice (Northern Territory) and

Northern Territory Government, ‘Modernisation of the Anti-Discrimination Act’, Discussion Paper,

September 2017; ACT Law Reform Advisory Council, ‘Review of the Anti-Discrimination Act 1991 (ACT)’,

Final Report, 2015; Victoria Department of Justice, ‘An Equality Act for a Fairer Victoria’, Equal Opportunity

Review Final Report, June 2008; Law Reform Commission of Western Australia, ‘Review of the Equal

Opportunity Act 1984 (WA)’, Project 111 - Final Report, 2022.

82 For examples, positive duties have been established in the /rish Human Rights and Equality Commission Act 2014 (lreland), Equality Act 2010 (UK), and Employment Equity Act 1995 (Canada).

83 ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT), Final Report, 18 March 2015, p 43.

84 ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT), Final Report, 18 March 2015, p 43.

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Introducing a positive duty to eliminate discrimination would lessen the burden on

individuals who may lack the capacity to make and pursue a complaint.®

A positive duty to eliminate discrimination is consistent with State Parties’ obligations under the CRPD. Article 4(e) requires State Parties to take ‘all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private

enterprise’.°°

We support the Disability Royal Commission’s recommendation to include a positive duty

to eliminate discrimination.

A new standalone duty to provide adjustments

We support the Disability Royal Commission’s recommendation to replace references to ‘reasonable adjustments’ with ‘adjustments’ and to create a new standalone duty to

provide adjustments.®”

The Disability Royal Commission observed that there is a misconception that a ‘reasonable adjustment’ is an adjustment that is both reasonable and does not cause

unjustifiable hardship.®®

We agree that the DDA should be amended to replace all references to ‘reasonable

adjustments’ with ‘adjustments.’

The law relating to the provision of adjustments for persons with disabilities in Australia

has not been straightforward.

When the DDA commenced, the term ‘reasonable adjustments’ was not in the legislation.

85 ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT), Final Report, 18 March 2015, p 46.

86 Convention on the Rights of Persons with Disabilities (New York, 13 December 2006) [2008] UNTS 2515, Article 4.

87 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.25 and 4.26).

88 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023, p 309.

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For the first decade, it was ‘presumed’ that the DDA obliged reasonable adjustments to

accommodate the needs of persons with disabilities.°9

Although the term was not in the DDA, various features of the legislation seemed to imply such an obligation.°°

During this period, the terms ‘reasonable adjustments’ and ‘reasonable accommodations’

were used interchangeably to describe the implied obligation.“

In 2003, the High Court case of Purvis questioned the presumption and significantly narrowed the protection that the DDA had been previously thought to provide.%

As a result of the ensuing confusion, the Productivity Commission recommended in its 2004 report that the DDA be amended to expressly include a general duty to make reasonable adjustments.°? In its report, the Productivity Commission examined other international jurisdictions, particularly the United Kingdom.”

Article 5(3) of the CRPD says that, to promote equality and eliminate discrimination,

countries must ensure that reasonable accommodation is provided.

‘Reasonable accommodation’ is defined in article 2 as:

Necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or

exercise on an equal basis with others of all human rights and fundamental freedoms.°°

89 Productivity Commission, Review of the Disability Discrimination Act 1992 (Cth), Inquiry Report, 2004, at XL.

80 Productivity Commission, Review of the Disability Discrimination Act 1992 (Cth), Inquiry Report, 2004, at XL.

*’Productivity Commission, Review of the Disability Discrimination Act 1992 (Cth), Inquiry Report, 2004, p 186.

°2Productivity Commission, Review of the Disability Discrimination Act 1992 (Cth), Inquiry Report, 2004, at Finding 8.1.

°3Productivity Commission, Review of the Disability Discrimination Act 1992 (Cth), Inquiry Report, 2004, at Recommendation 8.1.

°4 Productivity Commission, Review of the Disability Discrimination Act 1992 (Cth), Inquiry Report, 2004, pp 191-193.

°5 Convention on the Rights of Persons with Disabilities (New York, 13 December 2006) [2008] UNTS 2515, Article 2.

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In its General Comment No. 6 on Equality and Non-Discrimination of April 2018, the

Committee on the Rights of Persons with Disabilities explains the two elements of

reasonable accommodation: The duty to provide reasonable accommodation in accordance with articles 2 and 5 of the Convention can be broken down into two constituent parts. The first part imposes a positive legal obligation to provide a reasonable accommodation which is a modification or adjustment that is necessary and appropriate where it is required in a particular case to ensure that a person with a disability can enjoy or exercise her or his rights. The second part of this duty ensures that those required accommodations do not impose a disproportionate or undue burden on the duty bearer.

In 2009, the Australian Government amended the DDA to incorporate the Productivity

Commission’s recommendations.2”

Unfortunately, instead of creating an express, standalone duty, the duty was inserted as

a subsection in the provisions prohibiting direct and indirect discrimination.%

This has led to the confusing conflation of different concepts and resulted in

unnecessarily complex drafting.

It is also unfortunate that the Australian Government inserted a duty to provide ‘reasonable adjustments’ instead of ‘reasonable accommodation’. The insertion of a duty to provide reasonable accommodation would have better aligned with the wording of the then newly ratified CRPD.°° The DDA does not use the words ‘reasonable accommodation’, ‘specific measures’ and ‘disproportionate or undue burden’. Instead, it uses the terms ‘reasonable adjustments’, ‘special measures’ and ‘unjustifiable hardship’.1°

The 2009 formulation of the duty in the DDA has attracted considerable criticism.

°6 Committee on the Rights of Persons with Disabilities, General Comment No.6 (2018) on equality and non-discrimination, 19° session, UN Doc CRPD/C/GC/6, (6 April 2018) [25].

87 Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth).

88 The Federal Parliament amended sections 5 and 6 of the Disability Discrimination Act 1992 (Cth), which set out the tests for direct and indirect discrimination.

°° Convention on the Rights of Persons with Disabilities (New York, 13 December 2006) [2008] UNTS 2515, Article 2.

100 Disability Discrimination Act 1992 (Cth), ss 4(1), 11, 21B and 45.

101 See further, Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal

Opportunity Law, 3 edn, The Federation Press, 2018 at [7.6.18] and Alice Taylor, ‘Disability

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Courts have interpreted the duty in different ways. Rees, Rice and Allen observe:

Sense can be made of the provisions with an understanding of their origins and aims, as the court showed in Watts v Australian Postal Corporation, or the provisions can be rendered nugatory, as in the later case of Sklavos.1% The first decision to explore the nature of the reformulated duty in detail was the 2014 Federal Court decision of Watts v Australian Postal Corporation.‘°? In Watts, a female employee with a psychological condition successfully invoked the DDA against the Australian Postal Corporation in relation to their management of her return to work. 14 The court ordered the re-payment of Ms Watts’ sick leave, recreation leave, long service leave and compensation. In interpreting the employer’s duty to provide reasonable adjustments, Mortimer J considered the 2004 Productivity Commission’s recommendations, Australia’s 2008 ratification of the CRPD and the explanatory material to the 2009 amendments.’° Studying the explanatory memorandum, Mortimer J observed that the concept of reasonable adjustments was drawn from the CRPD: Although the phrase chosen by the Parliament is slightly different, it is clear that these amendments were made in pursuance of Australia’s international obligations under the Convention. If there is a

constructional choice, a construction of s 5(2), and those provisions designed to interact with it, which is

consistent with those obligations should be preferred, insofar as the text and context otherwise allow… 106

Unfortunately, the Full Federal Court in the 2017 case of Sklavos took a much narrower approach in their interpretation of the duty’®’”. The Federal Court tied the phrase ‘reasonable adjustments’ to the words ‘because of the disability’. The Australian College of Dermatologists did not have to make the reasonable adjustment to test Dr Sklavos without exams because their refusal to do so was not because of his disability. Rather, it

was to ensure the integrity of the examination process. It is fair to conclude that, although

Discrimination, the Duty to Make Adjustments and the Problem of Persistent Misreading’, (2019) 45 Monash Law Review 461.

102 Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law,

3’ edn, The Federation Press, 2018, at [7.6.19].

103 Alice Taylor, ‘Disability Discrimination, the Duty to Make Adjustments and the Problem of Persistent Misreading’, (2019) 45 Monash Law Review 461.

104 Watts v Australian Postal Corporation [2014] FCA 370. 105 Watts v Australian Postal Corporation [2014] FCA 370. 106 Watts v Australian Postal Corporation [2014] FCA 370. 107 Sklavos v Australasian College of Dermatologists [2017] FCAFC 128.

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the words ‘reasonable adjustments’ may bear a broad meaning in the DDA, their housing in these provisions narrows their amplitude by tying them to the phrase ‘because of the disability’. We note that the CRPD expression ‘reasonable accommodation’ is not narrowed by such words and is broader than the ‘reasonable adjustments’ in the DDA.

Sklavos has been criticised because it ‘negates the provision’s intended purpose’ and

renders the provision ‘meaningless’. 1°8

Rees, Rice and Allen argue that ‘urgent legislative amendment is needed’ to ‘clarify a new type of positive non-discrimination duty and abandon the current approach of relying

on negative prohibitions’.1°9

We note that on 2 July 2021, an alliance of 46 disability rights, community and legal organisations and 15 individuals wrote to the Attorney-General, Senator the Honourable Michaelia Cash, expressing their frustration.1° The signatories and endorsing organisations sought ‘urgent reform to remedy the ‘reasonable adjustment’ provisions in

the DDA following the decision of Sklavos v Australian College of Dermatologists.’“”“

The Disability Royal Commission recommended that the duty be amended to refer to ‘adjustments’ instead of ‘reasonable adjustments’ and that the duty be expressed as a standalone duty. The Disability Royal Commission concluded that a standalone duty would shift the courts’ focus to whether an adjustment would impose an unjustifiable hardship on a duty holder.

We support the Disability Royal Commission’s recommendations. “2

108 Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law,

3’ edn, The Federation Press, 2018, at [7.6.29].

109 Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law,

3 edn, The Federation Press, 2018, at [7.6.35].

110 Media Release, Media Release: Disability Community Calls For Reform After Discrimination Claims

Become ‘Impossible To Prove’, 2 July 2021 https://pwd.org.au/media-release-disability-community-calls for-reform-after-discrimination-claims-become-impossible-to

prove/?utm source=miragenews&utm medium=miragenews&utm campaign=news

111 Media Release, Media Release: Disability Community Calls For Reform After Discrimination Claims

Become ‘Impossible To Prove’, 2 July 2021 https://pwd.org.au/media-release-disability-community-calls for-reform-after-discrimination-claims-become-impossible-to

prove/?utm source=miragenews&utm medium=miragenews&utm campaign=news

112 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.25 and 4.26).

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Addressing intersectionality

We agree with the additional amendments put forward in the Issues Paper to amend the DDA to recognise intersectionality.1’%

Intersectional discrimination refers to a situation where several grounds operate and interact with each other at the same time in such a way that they are cumulative and inseparable, and thereby expose individuals to unique types of disadvantage and

discrimination.’“4

In its 2019 Concluding Observations on Australia’s Combined Second and Third Periodic

Reports, the Committee expressed concern that there is no effective legislative framework to protect persons with disabilities from systemic, multiple and intersectional forms of discrimination (especially at the Commonwealth level) and that the complaints mechanisms under existing law (especially the DDA) were inaccessible to persons with disabilities. 1“

The Committee emphasised that First Nations people with disabilities are particularly disadvantaged and often not consulted on matters that affect them.1’®

The Committee reiterated its previous 2013 recommendation that Australia should strengthen its anti-discrimination laws, particularly the DDA, to address and prohibit

systemic, multiple and intersectional forms of discrimination.’“”

Australia’s federal discrimination statutes require complaints of discrimination to be

brought under multiple statutory regimes.

113 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

27 to 28.

114 Committee on the Rights of Persons with Disabilities, General Comment No.6 (2018) on equality and non-discrimination, 19“ sess, UN Doc CRPD/C/GC/6, (6 April 2018)

115 Committee on the Rights of Persons with Disabilities, Concluding Observations on the Second and Third Combined Reports of Australia, 22“ session, UN Doc CRPD/C/AUS/CO/2-3, (15 October 2019), [9].

116 Committee on the Rights of Persons with Disabilities, Concluding Observations on the Second and Third Combined Reports of Australia, 22“ session, UN Doc CRPD/C/AUS/CO/2-3, (15 October 2019), [9].

117 Committee on the Rights of Persons with Disabilities, Concluding Observations on the Second and Third Combined Reports of Australia, 22“4 session, UN Doc CRPD/C/AUS/CO/2-3, (15 October 2019), [9].

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The AHRC may consider two or more complaints as one, but there is otherwise limited

potential for intersectional factors to be raised and considered. ‘’8

Legislation in Tasmania and the Australian Capital Territory have included definitions of intersectionality in the Disability Rights, Inclusion and Safeguarding Act 2024 (TAS) and Disability Inclusion Act 2024 (ACT).

In Tasmania:

intersectionality means the multi-layered experiences of people with disability in relation to the personal attributes of a person or group of persons that create interconnected and interdependent

systems of disadvantage or discrimination.“’9 In the Australian Capital Territory:

“intersectionality“ means the interconnected nature of attributes, including protected attributes, of a

person that create overlapping and interdependent systems of disadvantage or discrimination. ‘2°

We agree that the DDA should be amended to recognise intersectionality.

Inherent requirements (section 21A)

We agree with the Disability Royal Commission’s recommendation to amend the DDA to

include additional factors for consideration in relation to ‘inherent requirements’.

The DDA provides an exception to discrimination in employment if an employer can establish that a person with disability is unable to perform the ‘inherent requirements’ of

particular work. ’21

118 Emeritus Professor Ron McCallum AO, The United Nations Convention on the Rights of Persons with

Disabilities: An Assessment of Australia’s Level Of Compliance, Research publication for the Royal

Commission into Violence, Abuse and Exploitation of People with Disability, October 2020, p 21.

119 Disability Rights, Inclusion and Safeguarding Act 2024 (TAS), s 5. 120 Disability Inclusion Act 2024 (ACT), Dictionary. 121 Disability Discrimination Act 1992 (Cth), s 21A.

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There are no requirements for an employer to advertise the inherent requirements of a job, or to consult with prospective or existing employees before deciding whether they are

able to meet the inherent requirements of particular work. ‘72

The Disability Royal Commission highlighted that the current operation of the inherent requirements exception acts as a barrier to employment for persons with disabilities, and that the lack of clarity around inherent requirements can discourage persons with disabilities from applying for roles.123

Obtaining and retaining employment or performing other forms of remunerated work is

difficult for many persons with disability in Australia.

The inherent requirements exception is often relied on by employers who claim that a prospective employee cannot perform the inherent requirements of a job.

The Disability Royal Commission recommended that two additional factors be inserted into the DDA to specify that the ‘nature and extent of any adjustments made’ and the ‘extent of consultation with any person with disability concerned’ must be considered in determining whether a person would be able to carry out the inherent requirements of

particular work. ‘74

This is to ensure that persons with disabilities are appropriately included in employment decisions and these decisions are based on accurate information, rather than

assumptions or biases.

We agree with the additional considerations proposed by the Disability Royal

Commission.

122 Disability Royal Commission, Inclusive education, employment and housing, Final Report, Volume 7, 2023, p 389.

123 Disability Royal Commission, Inclusive education, employment and housing, Final Report, Volume 7, 2023, p 389.

124 Disability Royal Commission, Inclusive education, employment and housing, Final Report, Volume 7, 2023, p 438.

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Education (section 22)

We support the Disability Royal Commission’s recommendation to amend the DDA to explicitly cover suspension and exclusion.’2°

The DDA currently makes it unlawful for an educational institution to discriminate against a student on the grounds of their disability by:

e denying or limiting their access to a benefit e expelling them e subjecting them to any other detriment.

The Disability Royal Commission recommended making it explicitly unlawful to discriminate against a student by suspending or excluding the student.

The Disability Royal Commission noted that this may arguably already be covered by the phrase ‘any other detriment’. However, expressly clarifying that exclusion and suspension can constitute discrimination would benefit students with disabilities. 176

As evidenced by recent cases in Australia, including Purvis,’2” education is a highly litigated and problematic area for persons with disabilities, particularly for children with disability. Litigation can take many years to be resolved and can be emotionally and financially devastating for families of children with disability. There is a significant power imbalance in litigation between a child with disability and a governmental department.

For example, in Walker v State of Victoria’*®, Alex Walker was a child with learning disabilities, dyslexia, attention deficit hyperactivity disorder and Asperger’s syndrome. His mother brought a number of allegations of unlawful discrimination against the State of Victoria.’*9 Gray J (with whom Reeves J agreed) noted that it was a case in which the appellant was ‘a very vulnerable person’ and that in this kind of case, it is not surprising that there is a ‘high degree of parental anxiety’ about the inadequacies of education

services provided.1°°

128 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 7.2).

126 Disability Royal Commission, Inclusive education, employment and housing, Final Report, Volume 7, 2023, p 170.

127 Purvis v New South Wales [2003] HCA 62.

128 Walker v State of Victoria [2012] FCAFC 38.

129 Walker v State of Victoria [2012] FCAFC 38 at [114] per Gray J. 130 Walker v State of Victoria [2012] FCAFC 38 at [114] per Gray J.

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Article 24 of the CRPD recognises the right of persons with disabilities to education. >“

Under article 24, States Parties are to ensure, among other things, an inclusive education

system at all levels and lifelong learning. ‘2

In 2019, the Committee on the Rights of Persons with Disabilities expressed many

concerns and made several recommendations to the Australian government. ’*3

In particular, in line with the Committee’s General Comment No. 4 on the right to inclusive education and the Sustainable Development Goals, the Committee reiterated previous recommendations on education. It recommended that the Australian Government:

(a) Conduct a robust review, in consultation with organizations of persons with disabilities, of the

Disability Standards for Education 2005, implement the recommendations arising from that review and

develop a national action plan for inclusive education;

(b) Address the increasing rate of segregation, seclusion and isolation and the lack of age-appropriate settings for students with disabilities at all levels, in particular Aboriginal and Torres Strait Islander

students, and redirect adequate resources to a nationwide inclusive education system for all students;

(c) Expand the collection of data on the number of students with disabilities who do not qualify for an adjustment and who are unable to enrol in local mainstream schools, as well as data on educational

attainment, on completion, suspension and expulsion rates, on the use of restrictive practices and on cases of bullying.’%4

The Australian government has significant work to do to improve the area of education for

persons with disabilities.

This work must include legislative reform to the DDA to bring the DDA into better alignment with the CRPD and international best practice.

131 Convention on the Rights of Persons with Disabilities (New York, 13 December 2006) [2008] UNTS 2515.

132 Convention on the Rights of Persons with Disabilities (New York, 13 December 2006) [2008] UNTS 2515.

133 Emeritus Professor Ron McCallum AO, The United Nations Convention on the Rights of Persons with

Disabilities: An Assessment of Australia’s Level Of Compliance, Research publication for the Royal

Commission into Violence, Abuse and Exploitation of People with Disability, October 2020

134 Emeritus Professor Ron McCallum AO, The United Nations Convention on the Rights of Persons with

Disabilities: An Assessment of Australia’s Level Of Compliance, Research publication for the Royal

Commission into Violence, Abuse and Exploitation of People with Disability, October 2020

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Services provided by police officers (section 24)

We support the Disability Royal Commission’s recommendation to amend the DDA to ensure all persons with disabilities are protected from unlawful discrimination when

engaging with police.’%5

The prohibition against discrimination in service delivery does not currently cover interactions between police and persons with disabilities suspected of committing an offence.

The Disability Royal Commission recommended that the DDA be amended to explicitly clarify that all aspects of policing are covered, including the arrest of suspects. ’%°

We note that the Issues Paper suggests alternatively inserting a new provision or provisions into the DDA, to enhance clarity and reduce future statutory interpretation problems.

We consider that this drafting decision is best left to the relevant legislative drafters, as

long as the intent of the recommendation is captured.

We note that two Australian complaints about two First Nations men in custody came before the United Nations Committee on the Rights of Persons with Disabilities in 2019. They were brought under the Optional Protocol’?’” to the United Nations Convention on

the Rights of Persons with Disabilities °°.

The two decisions were Leo v Australia’?9 and Doolan v Australia.‘*° The applicants challenged the doctrine of unfitness to plead as being contrary to article 14 of the

135 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 8.19).

136 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 8.19).

137 United Nations General Assembly, Optional Protocol to the Convention on the Rights of Persons with Disabilities, 76° session, UN Doc A/RES/61/106 (13 December 2006)

138 Convention on the Rights of Persons with Disabilities (New York, 13 December 2006) [2008] UNTS 2515.

138 Committee on the Rights of Persons with Disabilities, Views; Communication No.17/2013, 22“ session, UN Doc CRPD/C/22/D/17/2013 (30 August 2019) (Leo v Australia)

140 Committee on the Rights of Persons with Disabilities, Views; Communication No. 18/2013, 22“ session, UN Doc CRPD/C/22/D/18/2013 (30 August 2019) (Doolan v Australia)

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CRPD.“41 Under Australia’s network of criminal laws, where a person is accused of a crime, the courts have discretion to determine that the person is unfit to plead to the charge. Sometimes, where a person with disabilities is charged with a crime and held to be unfit to plead, special hearings take place to test the strength of the evidence against the person. Where a person is found to be unfit to plead, the judge or magistrate usually has the power to order that the person be detained, but only on the grounds that the person is a danger to themselves or to others.

Mr Leo is a First Nations man with cognitive disabilities. In 2007, he was living with a family member in Alice Springs, however, he did not always take his medication. Mr Leo was charged with assaulting a woman and was indicted before the Supreme Court of the Northern Territory. The judge held, pursuant to provisions of Part IIA of the Criminal Code, that he was unfit to stand trial and subsequently he was placed under a custodial supervision order. As there was no alternative accommodation available, Mr Leo was sent to the high security section of the Alice Springs Correctional Centre, where he remained until 2013 when he was transferred to a secure care facility. In 2016, he was relocated to a community residence where he lives alone. In total Mr Leo spent five years and 10 months in custody, which is nearly six times the custodial sentence he would

served if he had been convicted of the offences with which he was charged. ’42

Mr Doolan is also a First Nations man with intellectual and psychosocial disabilities from the Northern Territory. As a result of acts during a psychotic episode, Mr Doolan was charged with common assault and property damage in circumstances of aggravation. Mr Doolan’s experience after being deemed unfit to stand trial was very similar to that of Mr Leo. Overall, Mr Doolan spent four years and nine months custody in prison which is almost five times the amount he would have served had he been convicted of his

crimes.143

141 See Further, Emeritus Professor Ron McCallum AO, The United Nations Convention on the Rights of

Persons with Disabilities: An Assessment of Australia’s Level Of Compliance, Research publication for the Royal Commission into Violence, Abuse and Exploitation of People with Disability, October 2020, pp 74-75.

142 Committee on the Rights of Persons with Disabilities, Views; Communication No. 17/2013, 22 session, UN Doc CRPD/C/22/D/17/2013 (30 August 2019) (Leo v Australia), [2.4]

143 Committee on the Rights of Persons with Disabilities, Views; Communication No. 18/2013, 224 session, UN Doc CRPD/C/22/D/18/2013 (30 August 2019) (Doolan v Australia) [2.6]

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The Committee on the Rights of Persons with Disabilities held that both men were in custody for an indefinite duration, were housed with convicted persons and received involuntary treatment, all of which amounted to a breach of article 15 of the CRPD.’4

Article 15 prohibits torture, cruel, inhuman or degrading treatment, or punishment. At the very least, the conduct was degrading and amounted to neglect. The Committee further held that the institutionalization of persons with disabilities as a condition to receive public sector mental health services constituted differential treatment on the basis of disability and, as such, was discriminatory, in violation of article 5.

It is clear from several judgments that not all government activities amount to services for the purposes of the DDA. Characterisation of the nature and scope of governmental activities is important in determining whether they amount to services. In the 2013 decision in Robinson v Commissioner of Police’**, a Full Bench of the Federal Court of Australia held that, in refusing to grant bail under the Bail Act,’4° the NSW police force was not providing a service. Therefore, no discrimination had occurred contrary to the DDA.

The question of whether the provision of accommodation in prisons and transportation to and from prisons were services under the DDA arose in Rainsford v Victoria.’‘4” Mr James Rainsford was imprisoned in Victoria between 1998 and 2004. He had a back injury and asserted that he had suffered indirect discrimination in two ways. First, when transported between prisons and courts he was not able to stretch his back. Second, when he spent nine days in a cell in the Spinal area of the Charlotte Management Unit of the Port Phillip

Prison, he was unable to stretch or exercise his back.

The Federal Magistrate’s Court answered the questions adversely to Mr Rainsford.’4® On appeal, the Full Federal Court held that it was not appropriate for the questions to be answered because they relied on facts which had not been found or agreed on by the

144 Committee on the Rights of Persons with Disabilities, Views; Communication No.18/2013, 225 session, UN Doc CRPD/C/22/D/18/2013Se (30 August 2019) (Doolan v Australia) [8.10]

145 Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64. 146 Bail Act 1978 (NSW).

147 Rainsford v Victoria [2007] FCA 1059.

148 Rainsford v Victoria [2007] FCA 1059 at [10].

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parties.’4° The matter was subsequently transferred to the Federal Court where Sundberg J dismissed Mr Rainsford’s claims. After detailing the evidence, Sundberg J held that he was not satisfied that either the transport or the time in the Charlotte Management Unit had led to any deterioration in Mr Rainsford’s back condition. ’°°

In examining whether the transportation and accommodation were services for the purposes of the DDA, Sundberg J noted the general remarks of Kenny J in the earlier proceedings before a Full Bench of the Federal Court. Kenny J delivered the principal judgment with which Hill and Finn JJ agreed. Her Honour remarked that:

In addition to the management and security of prisons, the purposes of the Corrections Act 1986 (Vic) include provision for the welfare of offenders. The custodial regime that governs prisoners under this Act is compatible with the provision of services to them: see, eg, s 47. … In discharging their statutory duties and functions and exercising their powers with respect to the management and security of prisons, the respondents were also providing services to prisoners. The fact that prisoners were unable to provide for themselves because of their imprisonment meant that they were dependent in all aspects of their daily living on the provision of services by the respondents. Although the provision of transport and accommodation would ordinarily constitute the provision of services, whether the acts relied on by Mr Rainsford will constitute services for the DDA will depend upon the findings of fact, which are yet to be

made and, in particular, the identification of the acts that are said to constitute such services.1*’ Sundberg J held that neither the transportation nor the accommodation were services:

… The two activities complained of by Mr Rainsford are, first, the transportation of prisoners between prisons and between a prison and court and, second, the accommodation of prisoners in cells within the prison system. This is the appropriate level of precision with which to identify the alleged services. So

identified, | am of the view that neither constitutes a service for the purpose of the DDA.

… [T]ransport is an inherent part of incarceration. Prisoners on remand must attend court for their hearings. Prisoners in low-security prisons who are re-classified must be moved to higher-security prisons. The prison system simply could not function without prison transport. It is an artificial use of the word service to apply it to a fundamental integer of a system over which those affected have no or

almost no control.

The accommodation of prisoners in cells within the prison system is similarly an inherent part of incarceration. Prisoners must be housed somewhere within the prison system and that this is so

demonstrates that for a prisoner to have a cell is not a helpful or beneficial activity so far as the prisoner

149 Rainsford v Victoria [2007] FCA 1059 at [10]. 150 Rainsford v Victoria [2007] FCA 1059 at [11]. 151 Rainsford v Victoria [2005] FCAFC 163 at [55] per Kenny J.

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is concerned. In so far as there is choice in the allocation of prison cells, it is a purely administrative and prison management matter. It does not, of itself, provide prisoners with a benefit. Rather, it is better described as being “part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services”, to adopt the words of Underwood J in Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner [2003] TASSC 27.12 However, Sundberg J made the following qualification later in his judgment when he said that: … Attending to the welfare of prisoners is an important legal obligation placed on both respondents. This is all the more so given the vulnerabilities of prisoners who are unable to do much to control their

circumstances within prisons. It is for this reason that | accept that certain facilities provided by the

respondents to prisoners may constitute services for the purposes of the DDA.’%* For Sundberg J, matters which amount to parts of the incarceration regime are not services for the purposes of the DDA. However, it is difficult to identify further criteria to determine which matters about the custody of prisoners are or are not inherent parts of the custodial regime. For example, is the food or the clothing supplied to prisoners an

inherent part of their incarceration?

Another example of a decision about discrimination in prisons is State of Queensland v Mahommed“*4, which was decided by the Supreme Court of Queensland in 2007. Mr Mahommed is a Muslim. He brought proceedings asserting that he had suffered from discrimination on the ground of religion owing to the failure of the prison authorities to supply him with Halal meat, contrary to the Queensland Anti-Discrimination Act.‘°° Initially, this matter came before the Queensland Anti-Discrimination Tribunal’®® which held that he had suffered both direct 9” and indirect discrimination’®® because of his religious beliefs. The direct discrimination occurred because the failure to supply halal meat meant that he had been treated less favourably. Indirect discrimination occurred in

182 Rainsford v Victoria [2007] FCA 1059 at [76]-[78].

153 Rainsford v Victoria [2007] FCA 1059 at [79].

154 State of Queensland v Mahommed [2007] QSC 018. 185 Anti-Discrimination Act 1991 (Qld), s 7(i),

186 Mahommed v State of Queensland [2006] QADT 21. 187 Anti-Discrimination Act 1991 (Qld), s 10.

188 Anti-Discrimination Act 1991 (Qld), s 11.

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the early months of his incarceration where he was required to conform to the prison diet

without the additions of other foods, and this requirement was held not to be reasonable.

The Queensland Government appealed to the Supreme Court where Lyons J dismissed the appeal holding that Mr Mahommed had suffered both direct and indirect

discrimination.

We support the Disability Royal Commission’s recommendation to amend the DDA to ensure all persons with disabilities are protected from unlawful discrimination when

engaging with police.

Disability standards (section 31)

We agree with the recommendation proposed by the Issues Paper to provide the Australian Human Rights Commission with additional powers to enforce compliance with

Disability Standards.’°

The Disability Standards are legally binding legislative instruments that supplement and

support the DDA by providing more detail on rights and responsibilities. 1° We note that three disability standards have been made:

• Disability Standards for Accessible Public Transport 2002 (Transport standards).
• Disability Standards for Education 2005 (Education standards)
• Disability (Access to Premises — Buildings) Standards 2010 (Premises standards). Disability standards are increasingly being relied on in disability discrimination litigation.‘*’ For example, the Federal Court and Full Federal Court decisions of Sklavos’®?, Walker’®? and Connor’®™ all considered the Education standards in detail.

159 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

89 to 92.

160 Australian Human Rights Commission, Disability Standards, Australian Human Rights Commission

website, accessed 14 September 2024.

161 Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law,

3 edn, The Federation Press, 2018, at [7.10.13]. 162 Sklavos v Australasian College of Dermatologists [2017] FCAFC 128.

163 Walker v State of Victoria [2012] FCAFC 38. 164 Connor v State of Queensland (Department of Education and Training) (No 3) [2020] FCA 455.

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We are seeing more references to contraventions of disability standards in disability

discrimination proceedings.

We note that there have also been proposals to develop Employment and Digital Communication Technology Standards.

Between 1994 and 1998, the AHRC prepared draft disability standards for employment, based on wide consultation. ’®° However, no agreement was reached ‘due to the difficulty of finding a balance between standards that were too specific to apply in all employment situations and those that were too general’.1®° The AHRC’s 2016 Willing to Work report recommended that the Australian Government further consult with individuals, employers and peak bodies to consider the merits of developing disability standards for

employment. ’®’

In 2021, the AHRC published the Human Rights and Technology report, authored by the Human Rights Commissioner, Mr Edward Santow.’® The report recommended that the

Attorney General develop a digital communication technology standard under the

DDA.“®

We note that a person can make a complaint about a breach of the Disability Standards to the Australian Human Rights Commission in the same way they can make a complaint

alleging unlawful discrimination under the DDA.

In 2022, the Australian Human Rights Commission was provided with additional powers to inquire into systemic or suspected systemic unlawful discrimination.’”° Under these provisions, the Australian Human Rights Commission can conduct an inquiry into any

matter that may relate to systemic unlawful discrimination.1”’ Following an inquiry, the

165 Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law,

3’ edn, The Federation Press, 2018, at [7.10.11].

166 Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law,

3’ edn, The Federation Press, 2018, at [7.10.11].

167 Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law,

3 edn, The Federation Press, 2018, at [7.10.11].

168Australian Human Rights Commission, Human Rights And Technology, Final Report, March 2021. 16° Australian Human Rights Commission, Human Rights And Technology, Final Report, March 2021. 170 Australian Human Rights Commission Act 1986 (Cth), s35L. 17 Australian Human Rights Commission Act 1986 (Cth), s35L.

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Australian Human Rights Commission can provide its findings to the Attorney-General

and publish a report, which may include recommendations. ’”2

Providing the Australian Human Rights Commission with additional powers to enforce compliance with the Disability Standards would also be beneficial.

For example, the Australian Human Rights Commission could apply to a court for civil penalty orders and injunctions, issue compliance notices or enter into enforceable

undertakings.

We agree with the recommendation proposed by the Issues Paper to provide the Australian Human Rights Commission with additional powers to enforce compliance with Disability Standards. We also support the suggestion in the Issues Paper to encourage duty holders to report on their compliance with relevant Disability Standards when preparing disability action plans.

A new offensive behaviour provision

We support the Disability Royal Commission’s recommendation to insert a prohibition on offensive behaviour, modelled on section 18C of the Racial Discrimination Act.’”°

The DDA includes provisions which make it unlawful for a person to harass another person. Sections 35, 37 and 39 of the DDA prohibit the harassment of a person with

disability in the contexts of employment, education and goods and services.

The Disability Royal Commission recommended a new provision making it unlawful to do

an act, otherwise than in private if:

e the act is reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person or group of people

e the act is done because of the disability of the other person or because some or all of the people in the group have or are perceived by the first person to have a disability. 1”4

172 Australian Human Rights Commission Act 1986 (Cth), s 35Q.

173 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.29).

174 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023, p 324.

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The Disability Royal Commission recommended this be defined as ‘offensive behaviour’,

consistent with the Racial Discrimination Act. We support this recommendation.

A new vilification provision

We support the Disability Royal Commission’s recommendation to insert a new provision to make it unlawful to vilify a person or group of persons with disabilities. 17°

We note that there have been several recent reviews recommending increased protections against vilification. For example, the Victorian Legislative Assembly Legal and Social Issues Committee in 20211’, the Queensland Parliamentary Committee’”’ and the Law Reform Commission of Western Australia’ in 2022. We note that the Australian Government recently passed the Criminal Code Amendment (Hate Crimes) Act 2025 (Cth).

The Australian Capital Territory, Tasmania and Victoria have legislation prohibiting vilification on the basis of disability.‘”? Victoria recently passed the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Act 2025, which strengthens existing

civil protections.

We agree with the Disability Royal Commission’s recommendation.

Exemptions

We note that the DDA includes ten permanent exemptions which set out when

discrimination against persons with disabilities is not unlawful:

° special measures

° superannuation and insurance

175 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.30).

176 Victorian Legislative Assembly Legal and Social Issues Committee, /nquiry into Anti-Vilification

Protections, Final Report, Victorian Government, March 2021.

177 Queensland Legal Affairs and Safety Committee, /nquiry into Serious Vilification and Hate Crimes, Report No 22, 2022.

178 Law Reform Commission of Western Australia, Review of the Equal Opportunity Act 1984 (WA), Project No 111, 2022.

178 Criminal Code 2002 (ACT), s 750(1), Anti-Discrimination Act 1998 (Tas), s 19.

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° acts done under statutory authority

° infectious diseases

° charities

° pensions and allowances

° migration

° combat duties and peacekeeping services ° peacekeeping services

° assistance animals.

The Australian Human Rights Commission can also grant temporary exemptions.

Special measures (section 45)

We agree with the Australian Human Rights Commission’s proposed amendments to the special measures exemption. These amendments include enabling the Australian Human Rights Commission to grant ‘special measure certificates’ and inserting a clarifying

definition for special measures. ’®° The special measures exemption is an example of positive discrimination.

Special measures enable assistance to be given to persons with disability even when the assistance may be discriminatory.

The Australian Human Rights Commission has explained that some duty holders, such as businesses, are unsure of the difference between special measures and temporary

exemptions. 1®“

Businesses and other organisations sometimes ask the Australian Human Rights Commission to grant a temporary exemption for conduct already covered by the special

measures exemption. 182

180 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

71 to 72.

181 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

71 to 72.

182 Australian Human Rights Commission, Free and Equal: An Australian Conversation on Human Rights,

Australian Government, 2021, p 128.

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The Australian Human Rights Commission cannot grant temporary exemptions in such

cases, as special measures do not constitute unlawful discrimination. Special measures certificates would provide reassurance to duty holders. ‘8%

A Clarifying definition of special measures could also ensure they are interpreted as

positive measures and align with international law obligations.

We agree with these additional amendments.

Superannuation and insurance (section 46)

We recommend that the Australian Government review the superannuation and

insurance exemption in the DDA. We note that the Productivity Commission recommended that section 46 of the DDA be amended to:

… [Clarify what are ‘other relevant factors’ for the purpose of the insurance and superannuation

exemption (s.46). ‘Other relevant factors’ should not include: ¢ stereotypical assumptions about disability that are not supported by reasonable evidence

• unfounded assumptions about risks related to disability. 184 The Productivity Commission further recommended that the DDA be amended to:

… [L]imit the application of the insurance and superannuation exemption (s.46). It should only apply if, when requested, insurance and superannuation providers give clear and meaningful reasons for unfavourable underwriting decisions (including an explanation of the information on which they have relied). 185

We note that the AHRC has written helpful guidelines. ’®°

183 Australian Human Rights Commission, Free and Equal: An Australian Conversation on Human Rights,

Australian Government, 2021, pp 127-128.

184 Productivity Commission, Review of the Disability Discrimination Act 1992 (Cth), Inquiry Report, 2004, recommendation 12.1.

185 Productivity Commission, Review of the Disability Discrimination Act 1992 (Cth), Inquiry Report, 2004, recommendation 12.2.

186 Australian Human Rights Commission, Guidelines for providers of insurance and superannuation under the Disability Discrimination Act, November 2016, p 14.

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We understand that some insurance companies may inappropriately use this exemption to deny cover, provide cover only with exclusions, or premium load (potentially to the extent that persons with disabilities are priced out of the market).

Migration (section 52)

The Disability Royal Commission recommended that the Australian Government initiate a review of the exemption of the Migration Act 1958 (Cth) from the application of the

DDA.“’8”

The Disability Royal Commission recommended that the review should consider changes to the legislation and migration practices to eliminate or minimise the discrimination and that the review should be conducted with particular reference to the rights recognised by the CRPD and Concluding observations on the combined second and third periodic reports of Australia made by the United Nations Committee on the Rights of Persons with Disabilities.

The Sydney Centre for International Law (SCIL) wrote a detailed submission to the

Disability Royal Commission.’®

In relation to section 52 of the DDA the SCIL submission noted that:

The discriminatory effect of the health test is rendered immune from review or objection under

the Disability Discrimination Act 1992 (Cth) as section 52 does not ‘affect the discriminatory provisions in the Migration Act or instruments made under that Act (i.e. the Migration Regulations). These provisions have been identified as being contrary to Article 18 of the CRPD as it limits the ‘liberty of movement’ of those migrants and asylum seekers with disabilities through the exclusion of them on the basis

of particular forms of disability.1%°

We note that the Department of Home Affairs has recently completed a review into the migration health requirement and the significant cost threshold for visa applicants.

187 Disability Royal Commission, Realising the human rights of people with disability, Final Report, Volume 4, 2023 (Recommendation 4.31).

188 Sydney Centre for International Law, Submission to the Disability Royal Commission,1 October 2020.

182 Sydney Centre for International Law, Submission to the Disability Royal Commission,1 October 2020, pp 16-17.

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The report presented findings with actions to assist in minimising discrimination within the

current function of the migration health requirement.

Following this review the cost thresholds for the health rules were relaxed. However, with respect, the problem of the discriminatory effect of the rules was not addressed because assessments are still based on putative rather than actual or likely costs. Accordingly, the health rules can operate to exclude a person based on their disability even though they would not pose a burden on the country. The criticism levelled at Australia by the Committee on the Rights of Persons with Disabilities in Sherlock v Australia (see Views: Communication 20/2014, 24th sess, UN Doc CRPD/C/24/D/20/2014 (30 April 2021)) still

stands.

We agree with the Disability Royal Commission’s recommendation that the Australian Government initiate a review of the exemption of the Migration Act 1958 (Cth) from the application of the DDA.

Assistance animals (section 54A)

We agree that establishing minimum standards for evidence could help to provide certainty to persons with disabilities of what evidence they need to provide in relation to assistance animals.’°° We consider guidance materials to be the most appropriate as

they are the most flexible.

Section 54A of the DDA contains the assistance animals exemption. The DDA applies to having an assistance animal in the same way it applies to having a disability. 19’ This means that it is unlawful to discriminate against a person because they have an assistance animal in the areas of public life covered by the DDA, including employment, education, access to premises and access to goods, services and facilities.

The DDA also sets out specific circumstances that are not unlawful discrimination against a person with an assistance animal. This includes asking a person to keep the assistance

animal under their control, denying access to premises or other services if a person

190 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

82 to 86.

191 Disability Discrimination Act 1992 (Cth), s 8.

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reasonably suspects the animal has an infectious disease, or asking for evidence that the

animal is an assistance animal.

An animal will be an assistance animal if it is accredited under a state or territory law. 1% We understand that 4 states and territories (Queensland, South Australia, Western Australia and the Australian Capital Territory) currently have their own accreditation

schemes.

An animal will also be an assistance animal if it has been trained by a training organisation prescribed by the regulations. ’?? However, no training organisations are

currently prescribed by the regulations.

An animal will also be an assistance animal if it is trained to assist a person with a disability to alleviate the effect of the disability, and to meet standards of hygiene and behaviour that are appropriate for an animal in a public.1%

In 2009, the assistance animal definition was amended to increase certainty for both service providers and people with assistance animals. Despite the 2009 reforms, the

current assistance animal framework is criticised for being confusing. 1%

We note that federal, state and territory government agencies are currently working to develop consistent national principles.

We understand that confusion remains around what evidence is required to show that an

animal is an assistance animal.

Establishing minimum standards for evidence could help to provide certainty to persons with disabilities of what evidence they need to provide.

We consider guidance materials to be the most appropriate. They are the most flexible, can be updated administratively and targeted towards public use.

182 Disability Discrimination Act 1992 (Cth), s 9(2). 193 Disability Discrimination Act 1992 (Cth), s 9(2). 194 Disability Discrimination Act 1992 (Cth), s 9(2).

195 See, Australian Human Rights Commission, Assistance animals and the Disability Discrimination Act

1992 (Cth), Australian Human Rights Commission website, accessed 14 September 2024.

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Temporary exemptions (section 55)

We agree with the additional amendment raised in the Issues Paper to amend the DDA to add a definition of ‘temporary exemption’.’1%

The DDA and the Disability Standards provide the Australian Human Rights Commission

with the power to grant temporary exemptions to the DDA and Disability Standards of up

to 5 years.

Adding a definition of ‘temporary exemption’ would provide further clarity, assist the Australian Human Rights Commission to specify particular terms and conditions or circumstances in which a temporary exemption applies and resolve confusion about the

difference between a temporary exemption and special measure. We do not consider that any specific criteria should be prescribed in the DDA. Adding specific criteria would limit flexibility.

The Australian Human Rights Commission has already created its own guidelines.’?”’ We

consider these to be sufficient.

Action plans (section 64)

We agree with the recommendations proposed by the Australian Human Rights

Commission relating to strengthening action plans. ‘9%

The Australian Human Rights Commission has recommended clarifying that the Australian Human Rights Commission may provide advice on the development and implementation of action plans.

The Australian Human Rights Commission has also recommended clarifying that the Australian Human Rights Commission may set minimum requirements for action plans

(such as through guidelines) and not accept action plans that do not meet these requirements.

196 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

74 to 80.

197 Australian Human Rights Commission, Temporary exemptions under the Disability Discrimination Act

1992 (Cth), Australian Human Rights Commission website, accessed 14 September 2024.

198 Attorney-General’s Department, Disability Discrimination Act 1992 Review, Issues Paper, 2025, pages

87 to 88.

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The Australian Human Rights Commission has also recommended introducing a set timeframe within which action plans will lapse, and requiring that outcomes of the evaluation of previous action plans be provided to the Australian Human Rights Commission when submitting a subsequent action plan.’%°

We note that the Australian Human Rights Commission currently maintains a public register of over 650 action plans from a broad range of organisations.

We agree with the recommendations proposed by the Australian Human Rights

Commission with respect to strengthening action plans.

Further matters for consideration

External affairs power

The external affairs power, contained in section 51(xxix) of the Australian Constitution, offers the Australian Government the power to address the many matters in the CRPD.?°

The Australian Government has enormous scope to improve its regulation of disability

matters.2°1

The external affairs power could arguably be relied on to even permit the implementation of observations or recommendations of the Committee on the Rights of Persons with

Disabilities.2°

This wide scope should be borne in mind when amendments to the DDA are being considered.

199 Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination laws, Australian Government, 2021, p 123.

200 Matthew Stubbs, Adam Webster and John Williams, Persons with Disability and the Australian Constitution, Report prepared for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, October 2020, p 29.

201 Matthew Stubbs, Adam Webster and John Williams, Persons with Disability and the Australian Constitution, Report prepared for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, October 2020, p 29.

202 Matthew Stubbs, Adam Webster and John Williams, Persons with Disability and the Australian Constitution, Report prepared for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, October 2020, pp 27-29.

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CRPD terminology

We recommend that, wherever possible and appropriate, the DDA should adopt the terminology of the CRPD.

We have already agreed that the definition of disability should be amended.

We note that the CRPD uses terminology like ‘reasonable accommodation’, ‘specific measures’ and ‘disproportionate or undue burden’, while the DDA uses the terms

‘reasonable adjustments’, ‘special measures’ and ‘unjustifiable hardship’.

Over time, the Australian Government should adopt more of the terminology of the CRPD to better align our domestic and international obligations.

Legislative examples

More legislative examples could be included within the DDA to aid and guide readers. Drafting practices have significantly evolved over the past three decades.

Modern Acts and instruments are drafted in a Plain English style and now employ a range of drafting techniques to aid readers. For example, the Commonwealth Office of Parliamentary Counsel states: At OPC we include a range of explanatory material within legislation to assist the users of our legislation. These include simplified outlines, decentralised tables of contents, flowcharts, examples and notes. ..2°

The DDA contains only four legislative examples and the examples are not particularly

illustrative .2

By way of contrast, Victoria provides over 20 examples with its Equal Opportunity Act 2010 (Vic). The following example of disability discrimination is provided underneath section 9 on indirect discrimination:

Examples

A store requires customers to produce photographic identification in the form of a driver’s licence before

collecting an order. This may disadvantage a person with a visual impairment who is not eligible to hold

203 Office of Parliamentary Counsel, OPC Drafting Manual, Edition 3.2, July 2019. 204 Disability Discrimination Act 1992 (Cth), ss 7, 8, 11 and 30.

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a driver’s licence. The store’s requirement may not be reasonable if the person with a visual impairment

can provide an alternative form of photographic identification.2°

The Equality Act 2010 (UK) provides explanatory notes in order to assist readers. For example, section 15 of that Act deals with discrimination arising from disability. The explanatory notes to that section, housed together with the statute book on the official UK government legislation website, set out the effect, background and examples: This section provides that it is discrimination to treat a disabled person unfavourably not because of the person’s disability itself but because of something arising from, or in consequence of, his or her disability, such as the need to take a period of disability-related absence. It is, however, possible to justify such treatment if it can be shown to be a proportionate means of achieving a legitimate aim. For this type of discrimination to occur, the employer or other person must know, or reasonably be expected to know, that the disabled person has a disability.2° The background to section 15 explains that the section is a new provision. It states that the former DDA 1995 provided protection from disability-related discrimination but, following a House of Lords judgment, the legislation no longer provided the degree of protection from disability-related discrimination that is intended for persons with disabilities. The notes explain that section 15 is aimed at re-establishing an appropriate balance between enabling a person with a disability to make out a case of experiencing a detriment which arises because of their disability, and providing an opportunity for an employer or other person to defend the treatment. 2°”

The examples provided under section 15 are:

An employee with a visual impairment is dismissed because he cannot do as much work as a non disabled colleague. If the employer sought to justify the dismissal, he would need to show that it was a

proportionate means of achieving a legitimate aim.

The licensee of a pub refuses to serve a person who has cerebral palsy because she believes that he is drunk as he has slurred speech. However, the slurred speech is a consequence of his impairment. If the licensee is able to show that she did not know, and could not reasonably have been expected to know,

that the customer was disabled, she has not subjected him to discrimination arising from his disability.

However, in the example above, if a reasonable person would have known that the behaviour was due

to a disability, the licensee would have subjected the customer to discrimination arising from his

205 Equal Opportunity Act 2010 (Vic), s 9. 206 Fquality Act 2010 (UK), s 15 - explanatory notes. 207 Equality Act 2010 (UK), s 15 - explanatory notes.

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disability, unless she could show that ejecting him was a proportionate means of achieving a legitimate

aim. 28

The explanatory memorandum for the DDA is not easy for users to locate as it is not housed on the Federal Register of Legislation.

The DDA should contain more useful legislative examples to assist readers.

Guidance materials

The Australian Human Rights Commission should continue to create guidance materials to assist persons with disabilities and duty holders.

Guidance materials, such as guidelines or web pages, help to explain the DDA and translate legal concepts into actionable, practical steps.

Guidance materials are significantly quicker and easier to change and update.

Guidance materials can be more easily found and accessed by the public. Different mediums, such as video, can be used to convey the information.

We support the making of further guidance materials by the Australian Human Rights Commission.

Harmonisation of federal, state and territory

statutes

The Australian, State and territory governments should hold discussions to examine ways

of harmonising and lessening inconsistencies between discrimination statutes.

The Australian Government should seek to reduce the current complexity and

confusion.2°

Stakeholders have expressed general support for harmonised federal and state discrimination law to the fullest extent possible.

208 Fquality Act 2010 (UK), s 15 - explanatory notes.

209 Matthew Stubbs, Adam Webster and John Williams, Persons with Disability and the Australian Constitution, Report prepared for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, October 2020, p 35.

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Where definitions differ between statutes, the legislation should be amended to reflect the

greatest level of protection.

We note that in 2012, the Australian Government released an exposure draft of the Human Rights and Anti-Discrimination Bill 2012 (Bill) which, if enacted into law, would

have consolidated the separate federal discrimination acts into a new statute.“

The approach mirrored that of State and territory legislation prohibiting discrimination on various grounds, including disability. Unfortunately, the Australian Government shelved the Bill before the 2013 federal election, to the extreme disappointment of community and

human rights advocacy groups.?“’

Remedies and costs

We recommend that the Australian Government conduct research into remedies in disability discrimination matters and consider the introduction of a costs protection

provision.

It is often the case that the damages awarded in successful discrimination proceedings

are for modest amounts.

In the Respect@ Work report, the AHRC recommended that the Australian Government conduct research on damages in sexual harassment matters and whether they reflect contemporary understandings of the nature, drivers, harms and impacts of sexual harassment. The AHRC also recommended that this research inform judicial education and training.’ In its response, the Australian Government committed to ensuring that research is undertaken on trends in the nature, type and quantity of damages awarded in

sexual harassment matters, in consultation with the new Respect@Work Council.2’%

210 The Bill proposed to amalgamate the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).

211 Human Rights Law Centre, Delay on stronger anti-discrimination laws met with extreme disappointment, 20 March 2013 < https://www.hrlc.org.au/news/delay-on-stronger-anti-discrimination-laws-met-with extreme-disappointment>

212 Australian Human Rights Commission, Respect@ Work: National Inquiry into Sexual Harassment in

Australian Workplaces, Report, 2020, recommendation 24.

213 Australian Government, A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces, Report, 2021, see response to recommendation 24.

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We recommend that the Australian Government similarly conduct research into damages

in disability discrimination matters.

We submit that remedies in disability discrimination complaints are rarely satisfactory. Damages are for low amounts, with apologies rarely ordered.

We also wish to propose the insertion of a costs protection provision.

Costs orders can have a devastating impact on persons with disabilities and their

families. Costs orders can also be financially ‘ruinous’.2“4

In both Purvis v New South Wales?’® and Walker v State of Victoria,21* the appeals were

dismissed with costs.

The AHRC is the first federal jurisdiction for a disability discrimination complaint under the DDA. If conciliation at the AHRC is unsuccessful, an applicant may apply to the Federal Circuit Court of Australia, and from there appeal to the Federal Court, Full Federal Court

and, with leave (as in the case of Purvis v New South Wales), the High Court of Australia. Litigation can take many years to be resolved.

In these federal jurisdictions (with the exception of the AHRC), the normal principle is that ‘costs follow the event’ and that an applicant or appellant pays a respondent’s costs of a

proceeding.

In Walker v State of Victoria,2“” Gray J (with whom Reeves J agreed) was critical of counsel representing Alex Walker for bringing the unsuccessful proceedings against the State of Victoria.2’® His Honour noted that the money that the State had expended in responding to the claim ‘would have been better spent in the provision of services for disabled students’ .2’9

214 Walker v State of Victoria [2012] FCAFC 38 at [114] per Gray J. 215 Purvis v New South Wales [2003] HCA 62.

216 Walker v State of Victoria [2012] FCAFC 38.

217 Walker v State of Victoria [2012] FCAFC 38.

218 Walker v State of Victoria [2012] FCAFC 38 at [114] per Gray J. 219 Walker v State of Victoria [2012] FCAFC 38 at [114] per Gray J.

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In the case of Kiefel v State of Victoria,2*° the mother of James Kiefel brought a proceeding, as his litigation representative, against the State of Victoria. James attended several schools conducted by the State of Victoria.22’ James had been diagnosed with ‘autism spectrum disorder’ and ‘language disorders, both in a receptive and expressive capacity’ .22* Expert evidence indicated that James consistently exhibited certain symptoms of autism spectrum disorder, including ‘difficulty in concentration and attention,

anxiety, limited speech, avoidance of non-preferred tasks and bouts of aggression’ .22°

The application alleged that the Department was guilty of ‘various acts and omissions constituting direct and indirect discrimination’ in the course of providing educational services to James.**4 The acts and omissions included James’ exclusion from school programs; failure of the Department to provide James with specified programs, plans, support, funding and facilities; and that James was ‘physically restrained’, received ‘physical injuries’ and ‘experienced extreme distress’.?25 The application was unsuccessful. In dismissing the application, Tracey J noted: This, unfortunately, is yet another case in which well-meaning parents have wrongly been led to believe that redress is available under the DDA for what they perceived to be deficiencies in the manner in which educational services have been provided to their children by the State of Victoria.226 Ms Kiefel was ordered to pay the respondent’s costs, including in part on an ‘indemnity

basis’ which is at a higher rate than the ordinary ‘costs as between party and party’.

We note that the 2012 draft Bill introduced a change in policy in relation to costs. The Bill provided for a default position where each party would bear their own costs in federal proceedings. The explanatory notes to the Bill explained that the risk of an adverse costs order is a ’significant barrier to commencing litigation, even for cases with relative

merit’.22”

220 Kiefel v State of Victoria [2013] FCA 1398.

221 Kjefel v State of Victoria [2013] FCA 1398 at [1].

222 Kiefel v State of Victoria [2013] FCA 1398 at [7].

223 Kiefel v State of Victoria [2013] FCA 1398 at [7.

224 Kiefel v State of Victoria [2013] FCA 1398 at [1].

225 Kiefel v State of Victoria [2013] FCA 1398 at [68].

226 Kiefel v State of Victoria [2013] FCA 1398 at [6].

227 Exposure Draft Explanatory Notes, Human Rights and Anti-Discrimination Bill 2012, November 2012.

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Unfortunately, the Bill was shelved.

We think the Australian Government should reconsider the very significant matters of remedies and costs for disability discrimination proceedings.

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