Review of the Disability Discrimination Act 1992

Disability Discrimination Act 1992
Review

Mental Health Coordination Council

Submission to the Commonwealth Attorney-General’s Department

October 2025

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Mental Health Coordinating Council

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For any further information please contact:

Corinne Henderson Director, Policy & Systems Reform E: redacted
T: redacted

To reference this document, please cite as follows: Mental Health Coordinating Council 2025, Review of the Disability Discrimination Act 1992 (Cth). Henderson C, Hoomans, M & Tadros, E. Submission to the Attorney Generals’ Department (Cth).

© Mental Health Coordinating Council NSW. (Copyright © 2025) It may be cited in part or reproduced in whole with permission.

Disclaimer: The content of this document is published in good faith by Mental Health Coordinating Council. It reflects the views of its authors on behalf of MHCC and those referenced and quoted in the text verbatim.

This submission includes research conducted with the assistance of AI technology. It has been carefully curated and reviewed by MHCC staff.

CONTENTS

Contents 1

Introduction 2

Background 4

Consultation Questions 5

Final Comment 41

References 42

INTRODUCTION

Mental Health Coordinating Council

Mental Health Coordinating Council (MHCC) is the peak body primarily for community-managed mental health organisations (CMOs) in NSW and is a Registered Training Organisation (RTO). We mostly represent community-based, non-government organisations that support people living with mental health challenges. MHCC’s 150 plus members assist people to live well in the community by delivering mental health and psychosocial supports including social inclusion, rehabilitation, and clinical services. Our purpose is to promote a strong and sustainable community-managed mental health sector with the investment, resources, and workforce it needs to provide effective psychosocial, health and wellbeing programs and services to the people of NSW.

MHCC provides leadership for the sector promoting policy and legislative reform, and systemic change. We design and develop resources to assist community-based organisations build its workforce capacity to deliver quality services informed by a human rights-based, trauma-informed, recovery-oriented practice approach.

The RTO delivers accredited and non-accredited programs, that support organisations and individuals to deliver high quality mental health and related psychosocial and rehabilitation services. We also deliver training and professional development more broadly across human service sectors including housing and homelessness, alcohol and other drugs and disability.

In August 2025 MHCC provided a submission to the Law Reform Commission’s Review of the Anti-Discrimination Act 1977 (NSW). In our submission we stated that one of the many reasons the review is important is because of its interest in its interface across multiple state and Commonwealth instruments. We are pleased to have the opportunity to now review the Disability Discrimination Act 1992 (Cth) (the DDA) and consider the consultation questions in the context of the review in process under review in NSW.

We welcome this opportunity to contribute to discussions about reforms that would modernise the DDA’s language and broaden its scope to reflect contemporary community expectations. Strengthening the DDA is essential to ensuring it provides effective, inclusive, and enforceable protections - particularly for people with lived experience of psychosocial disability and co-existing conditions as well as other vulnerable or marginalised disability communities across Australia.

People living with mental health and psychosocial challenges characteristically experience stigma and discrimination in every aspect of their lives. We are keen to see discrimination considered from a perspective that highlights the social determinants of health; and that reflects the dynamic social and political environment in which the DDA operates. It should address the increasing complex needs of a diverse population living with a range of disabilities, who rightly should expect to be treated with dignity and respect whatever their circumstances.

We anticipate that the actions resulting from this review will lead to meaningful improvements for people living with disability, including enhancing equity and access to health and other human services, in regulatory, workplace and in social contexts and in engaging with the law on equal terms with others in the community.

MHCC address its comments to the Attorney General based on the description of the scope of the review and consultation questions in the Issues Paper. We have provided an explanation in certain contexts to assist a better understanding of the points we make for the benefit of our members and stakeholders reading this submission; with a full appreciation that the Attorney General’s Reviewers are experts in the details, but ask for indulgence in this regard, on the part of those considering our points of view.

We express our willingness to be consulted on matters related to this review as the work progresses. For further information about this submission, please contact Corinne Henderson,

Director Policy & Systems Reform, at redacted

Dr Evelyne Tadros Chief Executive Officer Mental Health Coordinating Council Adjunct Associate Professor, School of Clinical Medicine Psychiatry and Mental Health, UNSW

E: redacted

24 October 2025

BACKGROUND

The Disability Discrimination Act 1992 (Cth) (DDA) was introduced into the Parliament in 1992.

“It has been described as a ‘landmark’ piece of legislation with an important role in furthering equality and human rights in Australia. The DDA makes it unlawful to discriminate against a person on account of their disability in specific areas of public life. This includes, but is not limited to, employment, education, accommodation, and accessing services and public places.

The Australian Government has stated its commitment to upholding the rights of people with disability and ensuring Commonwealth anti-discrimination laws work for people living with disability. Community understanding and expectations across Australia have shifted significantly in recent decades, in part due to the operation of the DDA and findings of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission). Governments, businesses, employers, schools and others have also taken important steps to improve equality for people with disability. This includes the development of Australia’s Disability Strategy 2021–2031 (Australia’s Disability Strategy) — Australia’s national disability policy framework. Australia’s Disability Strategy sets out a plan for continuing to improve the lives of people with disability in Australia over the next 10 years.”¹

The review is part of the Australian Government’s response to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission), which was extensive and far reaching. It made 222 recommendations, demonstrating the seriousness of the findings and highlighting how important it is to do more to stop unacceptable treatment of people living with disability².

The review considers the 15 recommendations that the Disability Royal Commission put forward about changing the Disability Discrimination Act 1992 (DDA). This includes consideration of the Disability Royal Commission recommendations to:

• updating the definitions of direct and indirect discrimination
• introducing a positive duty for duty holders to eliminate disability discrimination
• clarifying the duty to make adjustments for people with disability.

The review also seeks feedback about other ways in which the law could be amended to ensure that the DDA is law that is fit-for-purpose. MHCC provides its responses in answer to the consultation questions in the Attorney General’s Issues Paper which talks about each of these areas in more detail.

CONSULTATION QUESTIONS

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

The definition of disability DDA should be updated to reflect contemporary understandings of disability, including the following key considerations:

• Explicit Inclusion of Psychosocial Disability: The DDA should clearly define psychosocial disability as a protected attribute. This would ensure that people living with mental health and psychosocial challenges are explicitly covered under the Act.
• Recognition of Intersectionality: The definition should account for the intersection of disability with other identities, such as race, gender, and cultural background, to address the compounded forms of discrimination faced by individuals with overlapping identities.
• Alignment with the Social Model of Disability: The definition should move beyond the medical model and adopt the social model of disability, which focuses on societal barriers and systemic discrimination rather than individual impairments.
• Consistency with Federal and International Standards: The definition should align with the revised Anti- Discrimination Act (NSW) and the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which emphasise inclusive and broad definitions of disability.
• Inclusion of Neurodiversity: The definition should explicitly include neurodivergent conditions such as autism, ADHD, and dyslexia, recognising these as natural variations in human diversity rather than deficits.

By adopting a clear, inclusive, and contemporary definition of disability, the DDA can better protect individuals with disabilities, including those with mental health and psychosocial challenges, from discrimination.

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

• Disability should be understood in the context of social, economic, and political environments.
• Emphasise the role of stigma, poverty, housing insecurity, and access to services in shaping disability experiences.
• Lived experience and co-design to be central to developing the definition, to ensure relevance and effectiveness.
• Definitions should be trauma-informed, culturally safe, and accessible, especially for people living with cognitive or psychosocial impairments.
• Acknowledge and highlight the tensions between the DDA and states’ Mental Health Acts and other state Anti-Discrimination Acts, suggesting that definitions of disability must be aligned and account for overlaps and potential conflicts.

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

MHCC support the idea that the DDA would be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes. We argue that the current framework of the DDA and Anti-Discrimination Act 1977 (ADA) in NSW are fragmented and insufficient when it comes to protecting people who experience intersectional discrimination—that is, discrimination based on multiple overlapping attributes such as:

• Mental health condition + race
• Psychosocial disability + gender
• Neurodivergence + cultural background
• Disability + LGBTQ+ identity

These compounded experiences of discrimination are not adequately addressed by laws that treat protected attributes in isolation. We are therefore advocating for:

• Legal recognition of intersectional discrimination.
• Reform of the DDA and ADA to allow claims based on multiple attributes.
• Co-designed legal frameworks that reflect the lived realities of people with complex identities.

Allowing combined claims would:

• improve access to justice for people whose experiences don’t fit neatly into one category.
• Reflect contemporary understandings of identity and discrimination.
• Strengthen protections for marginalised groups, especially those with psychosocial disabilities.

4. Could any other changes be made to the Disability Discrimination Act to recognise and provide protection for people with disability who have intersecting identities, or addressing compounding discrimination?

MHCC propose several changes to the DDA to better protect people with disability who have intersecting identities and experience compounding discrimination:

• Recognise intersectional discrimination explicitly as mentioned earlier, e.g., where disability intersects with other attributes like race, gender, sexuality, age, and cultural background, address how these overlapping identities create unique and compounded barriers in areas such as healthcare, housing, education, and justice.
• Enable combined claims allowing individuals to bring claims under multiple protected attributes, which would reflect the real-world complexity of discrimination and improve access to justice.
• Ensure that claims processes are trauma -informed, culturally safe and accessible for people with cognitive and developmental disabilities.
• Introduce Positive Duties requiring organisations to:
  • Proactively prevent discrimination, rather than relying on individuals to lodge complaints.
  • Address systemic barriers that disproportionately affect people with intersecting identities.

• Reform Language and Scope, modernising the language of the DDA to:
  • Reflect contemporary understandings of disability and identity.
  • Include terms like psychosocial disability, neurodivergence, and intersectionality.

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

The NSW Law Reform Commission’s Consultation Paper on Unlawful Conduct (May 2025)³ outlines several options for reforming the definition of direct discrimination, the goal being to make the test easier to understand and apply for both duty holders and people with disability:

• The existing definition relies on a comparator test, which asks whether a person with a protected attribute (e.g., disability) is treated less favourably than someone without that attribute in similar circumstances. This test has been criticised for being complex and legalistic, making it hard for individuals to self-assess or for duty holders to comply.
• Requiring hypothetical comparisons that may not reflect real-world discrimination.
• It may also fail to capture subtle or systemic disadvantage.

The Commission considered replacing the comparator test with a detriment-based test, which would ask:

“Did the person experience a detriment because of their protected attribute?”

This approach focuses on the actual experience of the person; avoids the need for hypothetical comparisons and aligns with human rights principles and international best practice. (It is already used in other jurisdictions, such as the ACT Human Rights Act and UK Equality Act). This matters for people with disability because:

• A detriment-based test is more accessible and less technical, helping people with disability understand their rights.
• It better captures intersectional discrimination and future discrimination (e.g., assumptions about future incapacity).
• It supports a substantive equality approach, which focuses on outcomes rather than formal equality.

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

The question of how the burden of proof should be addressed in the DDA has been a concern in submissions to the NSW Law Reform Commission in NSW and we synthetise this as follows:

• Several submissions advocate for a reverse onus of proof, meaning that once a complainant establishes a prima facie case of discrimination, the burden shifts to the respondent to prove that the conduct was not discriminatory. This exists under the Fair Work Act 2009.
• This matters because complainants often lack access to evidence, especially in employment or service contexts where the respondent controls documentation and witnesses.
• The current system places a heavy burden on individuals, many of whom are already navigating disability-related barriers.

• MHCC member Mental Health Carers NSW (MHCN) supports a balanced approach where complainants should demonstrate a prima facie case.
• The burden then shifts to the respondent to show that the treatment was not due to the protected attribute (e.g., disability or mental health condition).

This approach promotes substantive equality; recognises the power imbalance between individuals and institutions and encourages accountability and transparency from duty holders. MHCC supports the adoption of a reverse onus of proof in the DDA. Once a complainant establishes a prima facie case of discrimination, the burden should shift to the respondent to demonstrate that the decision was not based on the person’s disability. This reform would align NSW law with national and international best practice, promote substantive equality, and reduce the evidentiary burden on individuals who often face systemic disadvantage.

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

To make the definition of indirect discrimination easier to understand and implement for both people with disability and duty holders, advocates in NSW have proposed several key reforms.

Under the current Act in NSW indirect discrimination occurs when a rule or requirement that appears neutral disadvantages people with a protected attribute and is not reasonable in the circumstances. This definition includes:

• A comparative impact test (disproportionate effect).
• An inability to comply element.
• A reasonableness standard.

These elements are often difficult for individuals and duty holders to interpret and apply However, the DDA explicitly includes “serious disadvantage” even if the person can technically comply — this is broader than the NSW test. Since the DDA applies nationally, its interpretation is influenced by federal case law and international human rights standards. Both Acts aim to capture systemic barriers, but the DDA may offer stronger protections in some contexts due to its broader scope and federal enforcement mechanisms.

MHCC propose the use of plain language that represents a simplified and inclusive definition using everyday language. For example, the DDA writes: “Indirect discrimination happens when a rule or policy that applies to everyone unfairly affects people with disability and isn’t fair or necessary.”

• The test should focus on the effect of the rule, not whether it was intended to discriminate. This helps capture systemic and structural barriers.
• Remove the “inability to comply” element as this requirement is outdated and confusing. It can exclude people who technically “can comply” but only with significant hardship or disadvantage.

The “inability to comply” element is explicitly part of the definition of indirect discrimination under the DDA when a person discriminates against another on the ground of disability if: the discriminator requires or proposes to require the person to comply with a requirement or condition, and because of the disability, the person does not or would not comply, or is not able or would not be able to comply with the requirement or condition. In this case the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. This clearly shows that inability to comply is a core part of the test.

This is problematic because the requirement is outdated and rigid, especially for people who technically can comply but only with significant hardship, stress, or disadvantage. It is also exclusionary, as it may fail to capture barriers to equitable participation, such as:

• Emotional distress
• Financial burden
• Loss of dignity or autonomy

Many disability advocates have recommended removing or reframing the “inability to comply” element, and shifting focus to whether the requirement causes disadvantage, regardless of technical compliance. This aligns with the social model of disability, which emphasises barriers and impacts, not just functional limitations.

Further, there is a need to clarify the term “reasonable” which should be defined with reference to:

• Human rights principles
• Accessibility standards
• Availability of reasonable adjustments

This would help duty holders understand their obligations and reduce ambiguity.

MHCC supports amending the definition of indirect discrimination to ensure clarity, accessibility and alignment with the social model of disability. The revised test should focus on the impact of policies or practices, remove the “inability to comply” requirement, and clarify the meaning of “reasonableness” in line with human rights standards. These changes will support duty holders to meet their obligations and empower people with disability to assert their rights.

8. Should the reasonableness element in the definition of indirect discrimination be:

• a) removed
• b) retained and supplemented with a list of factors to consider
• c) replaced by a legitimate and proportionate test
• d) other Please expand on your response.

Under the DDA, indirect discrimination occurs when a condition or requirement:

• Disadvantages people with disability.
• Is not reasonable in the circumstances.

The reasonableness test is meant to balance fairness, but it’s often vague and inconsistently applied.

a) To remove the reasonableness element

• Is not widely supported.
• Removing it could lead to overreach, where any disadvantage is automatically unlawful.
• Would reduce flexibility for duty holders.

b) Retain and supplement with a list of factors

• Widely supported by Legal Aid NSW and others.
• Suggested factors include:
  • The nature and purpose of the requirement.
  • The availability of reasonable adjustments.
  • The impact on the person with disability.
  • Cultural implications (especially for Aboriginal and Torres Strait Islander people).

This approach improves clarity and consistency

c) Replace with a legitimate and proportionate test

• Supported by some legal experts and international models (e.g., UK Equality Act) 4.
• Focuses on whether the requirement serves a legitimate aim and is proportionate to achieving that aim.
• Align with human rights law and the Convention on the Rights of Persons with Disabilities (CRPD).

d) Other

• If as some suggest proposing combining (b) and (c):
  • This would retain reasonableness but would need to be defined through a proportionality lens.
  • And include a non-exhaustive list of factors to guide interpretation.

Aligning closely with MHCC submission to the ADA in NSW, we support retaining the reasonableness element in the definition of indirect discrimination, supplemented by a clear, non-exhaustive list of factors to guide its application.

These factors should reflect trauma-informed and recovery-oriented principles, including the impact on mental health, the availability of reasonable adjustments, and cultural safety. We also support exploring a proportionality-based approach to ensure that any imposed requirement serves a legitimate purpose and does not unduly burden people with disability.

We also expressed openness to exploring a proportionality-based approach, particularly where it helps clarify the legitimate purpose of a requirement and whether its impact is justified. This position is consistent with MHCC’s broader advocacy for:

• Substantive equality
• Intersectional protections
• And a legal framework that is accessible, inclusive, and responsive to the lived experiences of people with psychosocial disability.

9. Should the language of ‘does not or would not comply, or is not able or would not be able to comply’ be removed from the definition of indirect discrimination?

MHCC argues that this language:

• Is outdated and confusing, especially for people with psychosocial disability.
• May exclude individuals who technically can comply with a requirement, but only with significant hardship, distress, or disadvantage.
• Fails to reflect the social model of disability, which focuses on barriers and impacts, not just functional limitations.
• Is inconsistent with trauma-informed and recovery-oriented principles, which emphasise dignity, autonomy, and lived experience.

MHCC supports replacing or reframing this element to:

• Focus on the disadvantage caused, rather than strict compliance.
• Better capture systemic and structural discrimination.
• Align with human rights standards, including the CRPD.

MHCC recommends removing the language of “does not or would not comply or is not able or would not be able to comply” from the definition of indirect discrimination in the DDA. This language is outdated and fails to capture the lived experiences of people with psychosocial disability, who may technically comply with a requirement but only at significant personal cost.

A revised definition should focus on the disadvantage or hardship caused, and reflect trauma-informed, recovery-oriented, and rights-based principles.

10. Should the Disabilities Convention be included in the objects provision of the Disability Discrimination Act?

In its contribution to a Community Mental Health Australia (CMHA) submission in 20235 MHCC supported including the CRPD in the objects provision of disability-related legislation, including the DDA. What we stated then was that we “welcomed provisions that aim to give effect to the CRPD”.

The submission emphasised that aligning legislation with the CRPD is essential to:

• Promoting human rights-based approaches
• Ensuring inclusive and equitable access to supports
• Reflecting the diverse and evolving understanding of disability, including psychosocial disability.

We argued that the CRPD should be explicitly referenced in the Objects of the Act to:

• Guide interpretation
• Strengthen accountability
• Ensure consistency with Australia’s international obligations.

MHCC supports the inclusion of the CRPD in the Objects provision of the DDA. This would ensure that the Act is interpreted and applied in line with Australia’s international human rights obligations.

It would also reinforce a rights-based, inclusive, and recovery-oriented approach to disability discrimination law. Explicit reference to the CRPD would also help clarify the scope and purpose of the Act for duty holders and people with disability.

In its Summary and Overview of the Disability Royal Commission, MHCC emphasised that:

• Transformational reform is needed to achieve meaningful outcomes for people living with mental health challenges and psychosocial disability.
• The CRPD should be explicitly referenced in legislation to ensure that:
  • Rights are translated into enforceable obligations under Australian law.
  • The legal framework reflects human rights principles, including dignity, autonomy, and inclusion.
  • Systemic barriers are addressed through rights-based and trauma-informed approaches.

We also highlighted that:

• Many of the Royal Commission’s recommendations relevant to psychosocial disability were only accepted in principle or subject to further consideration, underscoring the need for strong legislative anchors like the CRPD.
• Including the CRPD in the DDA’s Objects would help ensure that reforms are not just symbolic, but actionable and accountable.

11. Should the Disability Discrimination Act be expressly required to be interpreted in a way that is beneficial to people with disability, in line with human rights treaties?

MHCC supports the principle that the DDA should expressly be required to be interpreted in a way that is beneficial to people with disability and aligned with human rights treaties. As we have stated earlier in this submission, legislative interpretation should be guided by human rights’ principles, especially those enshrined in the CRPD.

Laws must be accessible, inclusive, and empowering, particularly for people with psychosocial disability. The legal framework should promote substantive equality, not just formal equality, and be responsive to the lived experience of discrimination and disadvantage. We advocate for an approach that empowers people with psychosocial disability to engage with the law on equal terms with others in the community.

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

In its summary of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability referred to earlier, MHCC highlights the recommendation that the DDA should include a positive duty to eliminate discrimination, requiring proactive action to remove systemic barriers and promote inclusion.

MHCC supports applying the duty to:

• Government agencies (state, territory, and federal)
• Public and private service providers
• Employers
• Education institutions

• Housing providers
• Health and mental health services
• Community-managed organisations and/or non-government organisations

This broad application ensures that all duty holders are responsible for:

• Preventing discrimination before it occurs
• Embedding inclusive practices
• Providing reasonable adjustments proactively
• Addressing systemic and intersectional disadvantage

This recommendation aligns with MHCC’s long-standing advocacy for:

• Trauma-informed and recovery-oriented service systems
• Rights-based approaches to mental health and psychosocial disability
• Systemic reform that shifts responsibility from individuals to institutions

A positive duty would shift the focus to prevention and accountability, making the law more effective and accessible.

13. Are there lessons from the operation of the positive duty in the Sex Discrimination Act that could be incorporated into a positive duty in the Disability Discrimination Act?

There are valuable lessons from the operation of the positive duty in the Sex Discrimination Act 1984 (Cth) that could be incorporated into a positive duty under the DDA. These are particularly relevant to advocacy for systemic reform, trauma-informed practice, and rights-based approaches.

Key Lessons from the Sex Discrimination Act’s positive duty are a:

• Shift from Reactive to Proactive
  • The positive duty requires organisations to prevent discrimination before it occurs, rather than relying on complaints after harm has occurred
  • This aligns with MHCC’s position that the burden should not fall on individuals, especially those with psychosocial disability, to initiate legal action.

The Australian Human Rights Commission (AHRC) outlines in Free and Equal: An Australian conversation on human rights seven standards that guide implementation of the positive duty:

• Leadership
• Culture
• Knowledge
• Risk management
• Support
• Reporting and response
• Monitoring, evaluation and transparency

These standards could be adapted to disability contexts to ensure that organisations:

• Build inclusive cultures
• Understand disability rights and reasonable adjustments
• Respond effectively to discrimination and disadvantage.

Reasonable and Proportionate Measures:

• Duty holders must take reasonable and proportionate steps to eliminate discrimination, tailored to their size, resources, and context
• This ensures flexibility while maintaining accountability — a principle MHCC supports in its advocacy for trauma-informed and recovery-oriented systems.

Enforcement Powers

• From December 2023, the AHRC has had powers to enforce compliance with the positive duty under the Sex Discrimination Act.
• A similar enforcement mechanism under the DDA would strengthen protections and ensure duty holders are held accountable.6

Incorporating lessons from the operation of the positive duty in the Sex Discrimination Act into the DDA include shifting from a reactive to a proactive model, adopting guiding standards such as leadership, culture, and support, and requiring duty holders to take reasonable and proportionate steps to prevent discrimination.7

14. What costs, benefits and other impacts would duty holders experience in meeting a positive duty under the Disability Discrimination Act? If you are an existing duty holder under the Disability Discrimination Act, please specify how you think meeting a positive duty would impact you.

MHCC supports the introduction of a positive duty under the DDA. While duty holders may face initial costs in training, policy development, and infrastructure, these are outweighed by long-term benefits including improved service quality, reduced complaints, and enhanced workforce culture.

As the peak body representing community-managed mental health organisations in NSW, MHCC believes that a legislated positive duty would provide clarity and consistency and should be supported by capacity-building resources and trauma-informed implementation strategies.

Costs, benefits, and impacts that duty holders may experience in meeting a positive duty under the DDA:

Benefits

• Improved service quality and outcomes. Proactively addressing discrimination leads to more inclusive, responsive, and effective services, especially in mental health and psychosocial support settings.
• Reduced complaints and legal risk. A positive duty encourages early intervention and prevention, reducing the likelihood of discrimination complaints and associated reputational or legal consequences.

• Enhanced workforce culture, embedding inclusive practices fosters safer, more respectful workplaces, improving staff wellbeing and retention.
• Alignment with human rights and recovery-oriented practice. Duty holders that adopt trauma-informed and rights-based approaches are better positioned to meet community expectations and policy standards.

Costs and Challenges

• Initial investment in training and systems Duty holders may need to invest in:
  • Staff training on disability rights and reasonable adjustments
  • Policy reviews and updates
  • Inclusive infrastructure and technology.
• Resource constraints Smaller organisations, especially in the community-managed sector, may face challenges in meeting compliance without additional funding or support.
• Need for cultural change Shifting from reactive to proactive models requires leadership commitment and sustained effort to embed inclusive values.

MHCC represents over 150 community-managed organisations that support people living with mental health and psychosocial disability challenges. From this vantage point, MHCC notes that:

• Many duty holders already strive to meet positive obligations but lack clear legislative guidance and support.
• A legislated positive duty would clarify expectations, promote consistency, and help embed inclusive practices across sectors.
• To be effective, the duty must be accompanied by:
  • Capacity-building resources
  • Clear compliance guidelines
  • Monitoring and accountability mechanisms.

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

MHCC advocate a broad and inclusive application of the duty, with supportive implementation mechanisms to ensure it is practical and effective across diverse sectors.

MHCC emphasises that:

• A positive duty should apply to all duty holders, including government agencies, employers, service providers, and education institutions.
• The duty should be proportionate, meaning that expectations are scaled to the size, resources, and context of each organisation.
• Rather than carving out exceptions, there should be:
  • Clear guidance on what constitutes reasonable and proportionate compliance.
  • Capacity-building support for smaller or under-resourced organisations.
  • Monitoring and accountability mechanisms to ensure consistent application.

This approach reflects a commitment to:

• Substantive equality
• Trauma-informed and recovery-oriented practice
• Systemic reform that shifts responsibility from individuals to institutions.

Whilst MHCC does not support broad exceptions or limits to the application of a positive duty under the DDA, instead, we recommend a proportionate approach that considers the size, resources, and context of each duty holder.

This ensures that all organisations are accountable for preventing discrimination, while recognising the need for tailored support and guidance. A universal positive duty, implemented with flexibility and supported by capacity-building measures, is essential to dismantling systemic barriers and promoting inclusion for people with psychosocial disability.8

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

The creation of a stand-alone duty to provide adjustments under the DDA would clarify the obligations of duty holders and reduce reliance on complaints-based enforcement, which can be inaccessible for people living with psychosocial disability. A proactive duty would better assist both people with disability and duty holders in understanding their rights and obligations, promote inclusion, support trauma-informed and recovery-oriented practice, and ensure that adjustments are provided consistently and equitably across sectors.

MHCC advocates clearer legislative obligations around reasonable adjustments and moving away from a reactive complaints-based model, which places the burden on individuals to prove discrimination. The current framework lacks clarity and consistency in how adjustments are expected to be provided. A stand-alone duty would:

• Clarify expectations for duty holders.
• Empower individuals with psychosocial disability to assert their rights.
• Promote systemic change by embedding inclusive practices into everyday operations.

Since people with psychosocial disability face barriers to navigating complaints processes, a proactive duty would reduce reliance on legal action to access adjustments.

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

Extending the scope of the duty to provide adjustments beyond the existing areas of public life covered by the DDA is consistent with MHCC’s broader advocacy for systemic reform, inclusive legal protections, and rights-based approaches for people with psychosocial disability. The current scope of anti-discrimination protections is too narrow, often limited to formal areas like employment, education, and service provision.

People with psychosocial disability experience discrimination in regulatory, workplace, social, and legal contexts that fall outside traditional definitions of public life. The law should reflect the real-world experiences of people with disability, including:

• Access to health and human services
• Housing and tenancy
• Community participation
• Legal and justice systems

MHCC supports reforms that promote full and equal participation in every aspect of life, not just those currently covered by the DDA. Expanding the scope of the duty would ensure that the law reflects the lived experience of discrimination and disadvantage.

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

Removing the word “reasonable” from the term “reasonable adjustments” could indeed create unintended consequences. MHCC’s position, as well as broader legal commentary suggests caution.

While we advocate for a clear and enforceable duty to provide adjustments, the concept of reasonableness is essential to ensure that adjustments are proportionate, practical, and tailored to individual circumstances. Removing this qualifier could create legal uncertainty, increase compliance burdens, and undermine the flexibility needed to implement trauma-informed and recovery-oriented practices. Instead, MHCC supports clearer guidance on what constitutes a reasonable adjustment, informed by consultation and lived experience.

A clear and enforceable duty to provide adjustments also recognises the importance of reasonableness as a safeguard for both people with disability and duty holders. The term “reasonable”:

• Balances rights and practicality: It ensures adjustments are meaningful and effective, but also proportionate to the context, resources, and capacity of the duty holder.
• Prevents unjustifiable hardship: Removing “reasonable” could imply that all adjustments must be made, regardless of cost, feasibility, or impact on others, which may be unworkable, especially for small organisations.
• Supports tailored solutions: The concept encourages consultation with the person with disability and consideration of individual needs, rather than applying blanket rules .

MHCC’s own policy resources reflect this balance, stating that adjustments should be provided “whenever it is necessary, reasonable, and possible to do so,” unless they constitute unjustifiable hardship.

• Without the qualifier, duty holders may struggle to interpret what is required, leading to inconsistent application or over-compliance.
• Removing “reasonable” could expose organisations to more complaints and legal challenges, even in cases where adjustments are genuinely impractical.
• The law may become less adaptable to diverse contexts, especially in community-managed or resource-constrained settings.

19. What is your preferred approach to achieving greater fairness and transparency in claims of unjustifiable hardship:

• a. the Disability Royal Commission amendment as proposed
• b. a new definition of unjustifiable hardship
• c. other
• d. Please expand on your response

MHCC supports reforming the concept of unjustifiable hardship in the DDA to promote greater fairness and transparency but does not explicitly endorse one single model. However, based on its submission to the Productivity Commission9 and broader advocacy, MHCC’s preferred approach aligns most closely with option (b): a new definition of unjustifiable hardship, supplemented by clearer guidance and accountability mechanisms.

The current concept of unjustifiable hardship is too vague, making it difficult for both people with disability and duty holders to understand what is justifiable or not. This lack of clarity can lead to:

• Misuse of the defence by employers or service providers,
• Barriers to asserting rights, especially for people with psychosocial disability,
• Inconsistent application across sectors.

MHCC recommends:

• Defining, quantifying, and explaining unjustifiable hardship in the legislation.
• Including clear criteria such as:
  • The nature and cost of the adjustment
  • The financial capacity of the duty holder
  • The impact on the person with disability
  • The availability of alternative supports.

MHCC also supports:

• Independent monitoring and enforcement of standards
• Funding support for duty holders to meet adjustment costs.

MHCC supports the development of a new, clearly defined concept of unjustifiable hardship under the DDA. The current definition is vague and inconsistently applied, creating barriers for people with psychosocial disability and uncertainty for duty holders. A revised definition should include transparent criteria, reflect trauma-informed and recovery-oriented principles, and be supported by independent monitoring and funding mechanisms. This approach would promote fairness, accountability, and meaningful access to rights.

20. What are your views on amending the Disability Discrimination Act to consider the nature and extent of any adjustments made and encourage consultation between prospective or current employers and prospective or current employees before making employment decisions?

MHCC’s supports amending the Disability Discrimination Act (DDA) to encourage consultation between employers and employees regarding adjustments, particularly in the context of employment decisions.

This would promote fairness, transparency, and inclusion, and reduce the risk of discriminatory outcomes. The current framework is reactive, placing the burden on individuals to prove discrimination after harm has occurred. A proactive consultation duty aligns with trauma-informed and recovery-oriented principles and ensures that employment decisions are made with a full understanding of the individual’s needs and circumstances.

There is no legal requirement for employers or service providers to take proactive steps to prevent discrimination or to consult about reasonable adjustments before making decisions. This lack of consultation can result in:

• Missed opportunities to provide effective support
• Unnecessary exclusion from employment
• Increased distress and disadvantage for people with psychosocial disability.

MHCC advocates for a proactive, trauma-informed approach that includes:

• Mandatory consultation with prospective or current employees about their adjustment needs
• Consideration of the nature and extent of adjustments already made
• A framework that supports collaborative decision-making and shared responsibility.

21. Are there other amendments to the Disability Discrimination Act that could support engagement between prospective or current employers and prospective or current employees to better understand the inherent requirements of a job?

There are several potential amendments to the DDA that could better support engagement between employers and employees, particularly around understanding and applying the inherent requirements of a job. MHCC has made relevant recommendations in this space including the importance of clarifying the definition and application of “Inherent Requirements.10”

The DDA currently allows employers to discriminate if a person with a disability cannot perform the inherent requirements of a job, even with reasonable adjustments. However, the law does not clearly define how these requirements should be assessed or documented. We recommend that there be a statutory obligation for employers to:

• Clearly document the inherent requirements of a role.
• Engage in a structured, consultative process with the employee or candidate.
• Consider medical or occupational evidence before making decisions.

The current model is reactive in that employees must raise issues or make complaints. MHCC recommend that employers proactively initiate discussions about reasonable adjustments and job requirements during recruitment and onboarding.

We strongly support the introduction of “Positive Duties”. As with recent reforms to sexual harassment law, the DDA should include a positive duty on employers to prevent discrimination and promote inclusion. This would shift the burden from individuals to organisations to ensure compliance.

There is a need also to improve guidance on “Unjustifiable Hardship” since the term is vague and inconsistently applied. Employers should be provided with a set of clear criteria with examples of what would constitute hardship11.

One example that MHCC highlighted in a submission to the Productivity Commission in 2019 about the need for clearer guidance on unjustifiable hardship was about the overuse of driver’s licence requirements in job ads as a form of indirect discrimination12.

Important also is support for intersectional discrimination. This means that there be a clear recognition that people with disabilities may face compounded discrimination due to race, gender, age, or cultural background, through the inclusion of provisions that explicitly address intersectionality in employment contexts.

In its 2025 submission to the NSW Law Reform Commission13, MHCC called for:

• Modernisation of anti-discrimination laws to reflect contemporary understandings of disability, especially psychosocial disability and a simplification of legal processes to reduce barriers for people with mental health conditions.
• Co-designed reforms that include people with lived experience in shaping how inherent requirements and reasonable adjustments are defined and applied are critical.
• Independent monitoring and enforcement of standards under anti-discrimination law.

In summary amendments to the DDA that could enhance engagement around inherent job requirements include:

• Clarifying legal definitions.
• Mandating proactive employer engagement.
• Introducing positive duties.
• Supporting intersectional and psychosocial disability perspectives.

22. Should any other amendments be made to the definition of inherent requirements, including factors that should be considered when deciding whether a person could carry out the inherent requirements of a job?

There is a strong case for amending the definition of “inherent requirements” in the DDA to better support fair and inclusive employment practices in Australia. The current definition and factors considered (Section 21A) does not explicitly define “inherent requirements,” but it is generally understood to mean the essential tasks or outcomes of a job that:

• Cannot be reassigned to others
• Cannot be performed in a substantially different way
• Would have serious consequences if not performed.

However, Section 21A (2) outlines the factors to consider when assessing whether a person can carry out the inherent requirements:

• The person’s past training, qualifications, and experience relevant to the job.
• The person’s performance as an employee.
• Any other factor that it is reasonable to take into account14.

A statutory definition could clarify that inherent requirements must:

• Be outcome-based, not task-based.
• Be assessed in light of reasonable adjustments.
• Be reviewed regularly to reflect changes in technology or work practices.

A structured assessment process could require employers to document:

• The essential outcomes of the role.
• The adjustments considered.
• The evidence used (e.g. medical, occupational, or lived experience input).

Amendments should include lived experience and co-design principles that require consultation with people with disability and disability advocacy organisations when defining inherent requirements for roles in public or funded sectors and make explicit that a person’s ability to meet inherent requirements must be assessed after reasonable adjustments have been considered and applied.

Introduce a positive duty to engage as is included in recent reforms in sexual harassment law. Employers are required to proactively engage with employees or candidates to explore how inherent requirements can be met.

Many job descriptions still include non-essential criteria (e.g., driver’s licence, lifting capacity) that can exclude people with disability unnecessarily. A clearer, more inclusive definition would:

• Reduce discrimination.
• Improve transparency and accountability.
• Support more consistent decision-making across sectors.

23. Should the concepts of exclusion and exclusionary discipline be defined in the Disability Discrimination Act?

There is growing support for defining exclusion and exclusionary discipline in the DDA particularly in light of the findings of the Disability Royal Commission and advocacy from community organisations including MHCC.

The reason for this is that the DDA does not currently define or explicitly regulate suspension, exclusion, or other forms of exclusionary discipline, which creates ambiguity and allows for inconsistent application across education and employment settings.

The Disability Royal Commission recommended that Section 22(2)(b) of the DDA be amended to explicitly include “suspension and exclusion” alongside expulsions. It also called for:

• Exclusionary discipline to be used only as a last resort (when there is a serious and immediate risk of harm to the student or others).
• Consideration of the student’s disability, age, and needs.

• (Requirement for the) implementation of (inclusive practices including) individual behaviour plans, reasonable adjustments (and connecting with students’ family and carers) before exclusion.*
• Reporting and oversight mechanisms for repeated exclusions15.

Students with disability, particularly those with psychosocial or neurodevelopmental conditions, are disproportionately affected by (gatekeeping, suspensions, expulsions and other forms of) exclusionary discipline. (This also includes students who are neurodivergent.) These practices, (often a response to ‘behaviours of concern’) can lead to:

• Educational disengagement (especially affecting social and emotional learning due to a lack of support)
• (Trauma, violence and neglect)
• Poor mental health outcomes
• Increased risk of contact with the justice system.

In MHCC’s 2025 submission to the NSW Law Reform Commission16 we strongly advocated inclusive, rights-based reform:

• Modernising anti-discrimination laws to reflect the lived experience of people with psychosocial disability.
• Addressing systemic barriers in education and employment, including those that lead to exclusion.
• Recognising intersectional discrimination, which often compounds the impact of exclusionary practices.

We therefore propose that the DDA:

• Clearly define exclusion and exclusionary discipline.
• Regulate their use, especially in education and employment.
• Ensure safeguards, such as behaviour plans, reasonable adjustments, and connection with the student’s family and carers.
• Apply requirements to both public and private schools to ensure students are protected regardless of their educational setting.

While MHCC’s referenced submission focuses on the NSW Anti-Discrimination Act, the principles advocated, such as co-design, proactive inclusion, and systemic reform, align with the push to define, reduce and regulate exclusionary discipline under the DDA (Cth).

24. Should there be exceptions or limits on when exclusion is unlawful?

The Australian Human Rights Commission (AHRC) has the power under Section 55 of the DDA to grant temporary exemptions from certain provisions of the Act. These exemptions:

• Are granted for up to five years.
• Are subject to conditions.
• Make otherwise unlawful discrimination temporarily lawful while the exemption is in force.

* Note: Brackets in No 23 above indicate MHCC’s additions to DRC recommended amendments.

However, the Commission is reluctant to grant exemptions that would simply allow discrimination to continue. Instead, it prefers to grant them conditionally, requiring the applicant to commit to improving access or inclusion within a reasonable timeframe.

MHCC’s NSW Mental Health Rights Manual17, acknowledges that the DDA includes certain exceptions and defences, such as:

• Unjustifiable hardship.
• Inherent requirements of the job.
• Health and safety considerations.

MHCC does not explicitly advocate for broader exceptions to unlawful exclusion in the Manual, as this is a resource that provides only facts about the law. However, more generally we promote:

• Stronger protections for people with psychosocial disability.
• Clearer guidance on how exceptions should be applied.
• Co-designed reforms to ensure that any limits on rights are proportionate and justified.

Other disability advocacy organisations, generally argue against broad exceptions to unlawful exclusion. Their key concerns include:

• Discriminatory attitudes being masked as “reasonable” exclusions.
• Lack of accountability when exclusions are not transparently justified.
• The need for clearer definitions and stronger safeguards to prevent misuse of exclusionary practices18.

25. Should any of the state and territory provisions relating to exclusionary discipline be adopted in the Disability Discrimination Act?

Both the Disability Royal Commission and numerous community organisations, including legal and advocacy groups have supported the idea that state and territory provisions relating to exclusionary discipline should inform or be adopted into the DDA.

The Royal Commission made clear and detailed recommendations that directly support incorporating state and territory provisions into federal law in Rec 7.2 which called for:

• Reviewing all state and territory regulations on exclusionary discipline.
• Ensuring that exclusion is used only as a last resort, and only to avert serious harm.

MHCC supports recommendations of the Disability Royal Commission, legal experts, and community organisations working in disability advocacy and education area which suggest incorporating state and territory provisions on exclusionary discipline into the federal DDA, particularly to:

• Ensure consistency across jurisdictions.
• Prevent inappropriate or discriminatory exclusions.
• Promote inclusive education practices.

26. Would a different approach to exclusionary discipline be more appropriate in the higher education and vocational education and training sectors?

In relation to Vocational Education and Training (VET) and Higher Education settings, there is a lack of tailored policy in relation to this matter. Most research and advocacy focus on school-aged students who are not completing any VET courses, with less attention given to exclusionary practices in VET and higher education.

Students from Year 9, age 14 years, can choose to complete VET in Schools programs as part of their Secondary study. The National Centre for Vocational Education Research’s VET in Schools 2024 report shows the number of students engaged nationally in VET has increased by 5.8% from 2023, to 266,765 students, and increased 55.4% to its highest level since the collection began in 2006. Students with a disability represented 3.0% of these figures19.

Whilst VET in Schools programs are a highly successful pathway for school aged students to gain recognition towards both their school qualification and a nationally recognised VET qualification, these learners are still engaged in their typical educational setting where exclusionary practices may be used.

The Centre for Inclusive Education and others argue that exclusionary discipline:

• Does not improve behaviour.
• Reinforces disengagement, especially for students with disability.
• Should be used only as a last resort when there is a serious and immediate risk of harm to the student or others, regardless of the education level20.

They write that students with disabilities are disproportionately affected by exclusionary discipline at all levels of education. This includes higher dropout rates, academic disengagement, and increased risk of justice system involvement.

It is important to highlight the adult learning principles, that apply to VET and higher education training programs. Adult learning principles emphasise self-direction, the leveraging of life experiences, and intrinsic motivation for learning. These include:

• Learner’s self-concept
• Role of the learner’s experience
• Readiness to learn
• Orientation to learning
• Motivation21

Adults often want to know why they need to learn something. They may ask: ‘Why do I need to know this? or ‘Why is this important?’ Students in adult learning environments are encouraged to understand the value of how their learning experiences will:

• Meet their needs
• Be relevant
• Help them achieve their goals.

Asking questions like ‘why do I need to know this?’ can be seen as an act of defiance, rather than a learner trying to understand cause and effect and they ‘why’ behind expectations. Questions of this nature support a student’s ability to make informed decisions.

The Australian Skills and Quality Authority’s Diversity and Inclusion Practice Guide is in response to the Department of Employment and Workplace Relations Outcome Standards for Registered Training Organisations (RTOs) 2025. Addressing Standard 2.5 of the legislative instrument, the guide covers:

• Inclusive marketing and enrolment
• Fostering an inclusive learning environment
• Cultural safety.

Examples of how RTOs can support these Standards include:

• Investing in staff understanding of socially inclusive training practices and working with diverse cohorts; for example, by developing trainers’ ability to adapt their delivery methods to suit the characteristics of students from various backgrounds, raising staff’s awareness of unconscious bias, racism and discrimination, and engaging staff in cultural awareness training.
• Offering students reasonable flexibility to allow them to engage meaningfully and meet their cultural obligations.
• Provision of wellbeing support services that are culturally appropriate and inclusive22.

Students engaging in VET of Higher Education can have prior traumatic experiences within educational settings. Ensuring that learners are supported and included is key to reducing barriers to engagement.

TAFE NSW’s Higher Education Student Progression and Exclusion Procedure identifies students deemed to be at academic risk as those not meeting minimum academic standards such as class attendance or submission of required assessments. To address this, TAFE NSW provides academic counselling and the development of a Student at Risk Intervention Plan requiring the student to:

• Attend academic skills programs
• Attend tutorial or study groups
• Receive individual case management
• Attend academic or personal counselling
• Have their study load reduced
• Receive reasonable adjustment or special consideration for an assessment event
• Receive assistance with personal issues which are influencing progress
• Receive mentoring, or
• A combination of the above23.

MHCC’s Learning and Development supports inclusive education at all levels and adopts co-designed policies that reflect the lived experience of people with psychosocial disability in the development and provision of training.

MHCC also have a policy promoting diversity and inclusion practices that minimise exclusionary practices, and foster trauma-informed and supportive approaches tailored to each individual learner that ensures the meaningful participation and safety of all students. This approach rather than the use of exclusionary discipline, is more appropriate.

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

MHCC, like others in the community sector have expressed strong support for amending the DDA to better protect people with disability from offensive behaviour and harassment. Our recommendations focus on strengthening legal protections, introducing positive duties, and aligning with international human rights principles and standards.

In its 2025 submission to the NSW Law Reform Commission24, MHCC made several key points relevant to this issue, which equally apply to the DDA:

• Current protections are inadequate: Existing anti-discrimination laws, including the DDA, do not go far enough to prevent harassment, vilification, or offensive conduct—especially for people with psychosocial disability.

• Support for positive obligations: The law should include positive duties on employers, service providers, and institutions to prevent harassment and discrimination, not just respond after harm has occurred.

• Barriers to justice: People living with mental health conditions often face systemic barriers to lodging complaints, including:

  • Lack of support services.
  • Limited capacity within anti-discrimination bodies.
  • No provision for decision support services, which are crucial for people with psychosocial disability25.

Women With Disabilities Australia (WWDA) and Disability Representative Organisations26, 27 including MHCC strongly support amending the DDA to:

• Include explicit protections against harassment and offensive behaviour.
• Introduce positive duties on institutions.
• Ensure accessible justice mechanisms.
• Align with the CRPD.
• Introduce a Positive Duty.
• Require organisations to take proactive steps to prevent harassment and offensive behaviour, similar to recent reforms in sexual harassment law.

They also advocated to expand definitions to include clear definitions of:

• Offensive behaviour (e.g. mocking, slurs, exclusion).
• Harassment (including verbal, physical, and online).

As well as strengthen enforcement mechanisms to:

• Provide accessible complaint pathways.
• Fund legal and advocacy support for people with disability.

• Require reporting and transparency from institutions.
• Recognise intersectionality by ensuring protections account for multiple forms of discrimination (e.g. disability + race, gender, or age).

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

In its summary of the Disability Royal Commission Final Report28, MHCC supported the idea that the DDA should be amended to better protect people with disability from offensive behaviour and harassment. We stated that the DDA should be amended to:

• Reflect human rights-based language and obligations.
• Include clearer protections against offensive conduct and harassment.
• Ensure that people with psychosocial disability are specifically protected from discriminatory and harmful behaviour.

MHCC do not define the terms because we emphasise that any definitions or legal reforms should be co-designed by people with disability, including those with lived experience of psychosocial disability, ensuring that definitions of harassment and offensive behaviour are grounded in real-world impacts, not just legal theory.

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

In its 2025 submission to the NSW Law Reform Commission,29 MHCC acknowledged that exemptions and special measures may be necessary in some cases, but emphasised that:

• Exemptions must be transparent, time-limited, and subject to oversight.
• They should be consistent with human rights principles and not undermine the purpose of anti-discrimination laws.

MHCC did not support broad exemptions that would allow harmful or offensive behaviour to be justified under the guise of free speech or other defences. Instead, we advocated for positive obligations on institutions to prevent discrimination, harassment, and vilification, rather than relying on reactive complaint-based models30.

The AHRC grants exemptions cautiously and only when they promote the objectives of the Act. Instead, the focus is on strengthening protections, introducing positive duties, and ensuring accountability.

30. Given the recent legislative developments, are there any further gaps in the legislative framework that could be addressed by amendments to the Disability Discrimination Act to protect people with disability from vilification?

MHCC and other community organisations have clearly identified gaps in the DDA legislative framework, particularly around vilification and have called for reforms to address these by:

• Amending the DDA to reflect the principles and rights recognised in the UN Convention on the Rights of Persons with Disabilities (UNCRPD).
• Amending the DDA so that it would:
  • Translate human rights into enforceable legal standards.

• Include protections against violence, abuse, neglect, exploitation and vilification.
• Establish positive duties on institutions to prevent harm, not just respond to it.

We have also recommended expanding the scope of the DDA to include:

• Stronger protections against harassment, offensive conduct, and vilification.
• Clear definitions of these behaviours.
• Mechanisms for redress that are accessible and trauma-informed31.

MHCC also highlights the need for:

• Co-designed reforms that centre the voices of people with lived experience.
• Intersectional protections, especially for people with psychosocial disability, First Nations people, and other marginalised groups.

31. How could the Disability Discrimination Act be amended to ensure that it covers policing?

MHCC and member organisation Mental Health Carers NSW (MHCN) have expressed views that support amending the DDA to ensure it explicitly covers policing and related justice system interactions. Their positions are grounded in the findings of the Disability Royal Commission and their own advocacy work.

In its summary of the Disability Royal Commission Final Report, MHCC supported amending the DDA to reflect the principles of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) to ensure enforceable obligations across all public services, including policing. They also supported the creation of a Disability Rights Act (DRA) that would:

• Translate human rights into legal protections.
• Include positive duties on institutions like police to prevent discrimination, violence, and abuse.
• Ensure access to justice and supported decision-making for people with disability, including those interacting with police32.

MHCC also highlights the need for trauma-informed approaches in all public systems and specialised services for people with cognitive and psychosocial disability, including in justice and policing contexts.

Mental Health Carers NSW (MHCN) has made several recommendations that MHCC supports that directly relate to policing and justice system interactions:

• Amend anti-discrimination laws to include explicit protections for people with psychosocial disability and their carers when interacting with police and forensic systems.
• Prohibit vilification and media exposure of forensic patients and their families, including:
  • Publishing names, addresses, or places of incarceration or release.
  • Strengthening confidentiality obligations for police, health services, and tribunals.
  • Implement binding codes of ethics and confidentiality for police and justice system staff to prevent discrimination and protect privacy33,34.

In summary MHCC advocates for:

• Systemic reform to ensure people with mental health conditions are not criminalised due to their disability.
• Better training and accountability for police in dealing with people experiencing mental distress.
• Explicitly cover policing and justice system interactions.
• Introduce positive duties on police to prevent discrimination and uphold human rights.
• Strengthen privacy and confidentiality protections for people with disability and their families.
• Ensure trauma-informed, inclusive practices are embedded in policing.

32. Are there any specific circumstances or situations relating to policing or justice that should be excluded from the application of the Disability Discrimination Act?

In its executive summary responding to the Disability Royal Commission, MHCC strongly supported extending the DDA’s protections to explicitly cover these areas. What we said we wanted to see are:

• Amendments the DDA to explicitly cover police provision of services (Rec 8.19).
• Improvements to police responses to people with disability (Rec 8.20).
• Disability awareness and trauma-informed practices embedded in justice and policing systems.
• People with psychosocial disability are protected from discrimination and harm in all public service contexts, including law enforcement 35.

We did not suggest any exclusions from the DDA’s application to policing. Instead, it advocated for greater accountability, training, and systemic reform. Likewise, disability justice organisations and legal advocates also support inclusion, not exclusion, of policing under the DDA adding that:

• The DDA should be amended to ensure non-policing alternatives, trauma-informed health led crisis responses, and community-based supports are prioritised.
• There is legal accountability when police actions violate disability rights.
• Disability rights are embedded in justice system practices.
• Accountability and reform to protect people with disability from harm.

33. Could any of the permanent exemptions be narrowed or updated, while balancing other policy considerations?

MHCC and other community organisations in Australia have expressed nuanced views on the topic of permanent exemptions under legislation such as the Sex Discrimination Act (SDA), particularly in relation to section 3336 and similar provisions.

We have consistently advocated for reforms that uphold human rights and promote inclusive, recovery-oriented practices. In its submissions to various law reform bodies, MHCC:

• Endorsed the National Decision-Making Principles proposed by the Australian Law Reform Commission (ALRC), which emphasise autonomy, inclusion, and supported decision-making for people with disabilities37.

• Criticised blanket exemptions that undermine rights, arguing that they often reflect outdated stereotypes and fail to balance competing human rights appropriately.
• Supported narrowing or removing permanent exemptions, especially where they conflict with international human rights obligations (e.g., CEDAW)38 or perpetuate discrimination.

MHCC’s submissions also call for:

• Sunset clauses on permanent exemptions to allow for periodic review and public consultation.
• Replacement of specific exemptions with a general limitations clause, which would permit discriminatory conduct only within “reasonable limits” based on proportionality and necessity39.

Other community organisations and legal experts have echoed similar concerns which MHCC supports:

• Human Rights Law Centre and the national Association of Community Legal Centres (NACLC) have argued that permanent exemptions compromise equality and should be subject to rigorous review.
• HREOC (now the Australian Human Rights Commission) recommended a three-year sunset clause for all permanent exemptions, followed by a comprehensive inquiry to assess whether they should be retained, narrowed, or removed.
• Legal scholars have proposed a shift to a general limitations clause, which would allow courts to assess the legitimacy of discriminatory conduct based on human rights principles rather than rigid statutory exemptions.

Policy Considerations for Updating Permanent Exemptions:

• Reform should involve broad consultation with affected communities, including people with lived experience.
• Any retained exemptions should be subject to regular review, appeal mechanisms, and independent oversight.

34. Should the Australian Human Rights Commission be given the power to grant special measures certificates?

According to the AHRC’s own 2018 Guidelines on Special Measures40, the Commission does not have the power to certify special measures under the Sex Discrimination Act (SDA). There is no formal certifying procedure available elsewhere in federal law for special measures. Organisations and individuals must rely on self-assessment and legal advice to determine whether their actions qualify as special measures under section 7D of the SDA.

If the AHRC were to be given this power, several policy factors would need to be considered:

• Criteria for Certification: Clear, transparent standards would be needed to assess whether a measure qualifies.
• Review and Appeals: Mechanisms for challenging or reviewing certification decisions would be essential.
• Consistency Across Jurisdictions: Coordination with state and territory anti-discrimination bodies would be necessary to avoid duplication or conflict.

• Safeguards Against Misuse: Ensuring that certification is not used to justify measures that entrench inequality or discrimination.

35. Should a definition for special measures be added to the Disability Discrimination Act?

MHCC and other community organisations have weighed in, directly or indirectly, on the question of whether a definition of “special measures” should be added to the DDA.

In its 2023 summary and overview responding to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability41, MHCC supported:

• Amendments to the DDA that would translate principles from the UN Convention on the Rights of Persons with Disabilities (UNCRPD) into enforceable obligations under Australian law.
• The enactment of a new Australian Disability Rights Act (DRA), which would clarify and strengthen rights protections, including the use of special measures to promote equality.
• A shift away from the medical model of disability toward a social model, which aligns with the idea that special measures are necessary to remove systemic barriers and promote inclusion 42.

While MHCC did not explicitly call for a definition of “special measures” to be added to the DDA, we support legal clarity and rights-based reform, especially if it helps ensure consistency with international human rights standards.

In this Attorney-General’s Department Review of the DDA, part of the Government’s response to the Disability Royal Commission includes consideration of whether to define “special measures” more clearly. MHCC agrees that it is important to “Modernise the Act” to better reflect contemporary understandings of equality and inclusion; Implement 15 recommendations from the Royal Commission, many of which relate to improving legal protections for people with disability43.

36. Should a definition for temporary exemptions be added to the Disability Discrimination Act?

Section 55 of the DDA gives the Australian Human Rights Commission (AHRC) the power to grant temporary exemptions from certain provisions of the Act. These exemptions can last up to five years and may be subject to terms and conditions. The Act does not define “temporary exemptions” or set out detailed criteria for their approval. Instead, the AHRC has developed guidelines to assist in decision-making44.

In its submission to the NSW Law Reform Commission, MHCC raised concerns about the complexity and lack of clarity in anti-discrimination laws, especially for people with psychosocial disabilities. We support reforms that modernise and simplify legislation to promote equal enjoyment of rights and reduce barriers to justice45, which would also help clarify and strengthen the legal framework around temporary exemptions.

Adding a definition of “temporary exemptions” to the DDA could:

• Improve legal certainty for applicants and affected parties.
• Ensure consistency with the objects of the Act (e.g., promoting equality and inclusion).
• Prevent misuse of exemptions for commercial or administrative convenience.
• Facilitate public consultation and accountability in exemption decisions.

37. Would you recommend any changes to the legislative process of granting temporary exemptions?

In its submission to the NSW Law Reform Commission, MHCC highlighted several systemic issues with exemption processes:

• MHCC noted that exemption processes are difficult to navigate, especially for people with psychosocial disabilities. This complexity can act as a barrier to justice.
• MHCC criticised the current model where individuals must prove discrimination after the fact, rather than having proactive protections built into the law.
• MHCC advocated for reforms to be co-designed with affected communities to ensure they reflect lived experience and promote equity.

While MHCC’s submission focused on NSW legislation, its principles clearly apply to federal processes under the DDA, including temporary exemptions. In the current review of the DDA part of the government’s response to the Disability Royal Commission includes consideration of:

• Improving the exemption process to ensure it aligns with the Act’s objects and human rights principles.
• Implementing 15 accepted recommendations, some of which relate to strengthening protections and reforming regulatory mechanisms like exemptions.
• Suggested changes to the legislative process.

Based on these inputs, recommended reforms which MHCC support were suggested that could include:

• Defining clear, rights-based standards for when and how exemptions can be granted.
• Requiring stakeholder input for all exemption applications.
• Time-limited and conditional approvals that tie exemptions to measurable commitments and sunset clauses.
• Independent oversight by introducing review mechanisms or appeals to ensure fairness and accountability.
• Transparency and reporting that publishes exemption decisions and rationales in accessible formats.

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

Several community organisations including Children and Young People with Disability Australia (CYDA), People with Disability Australia (PWDA), and contributors to the Australian Human Rights Commission (AHRC) consultation have made detailed recommendations on how to clarify protections for assistance animals under the DDA.

These recommendations aim to support both people with disability and duty holders (e.g., businesses, transport providers, government agencies).

MHCC support what the AHRC and community organisations have highlighted including several areas of confusion and inconsistency:

• Lack of clarity in Section 9 of the DDA regarding what qualifies as an assistance animal, especially beyond guide and hearing dogs.
• Uncertainty about training standards, hygiene, and behaviour expectations in public places.
• Inconsistent recognition of assistance animals across jurisdictions, leading to discrimination and access barriers46.

MHCC also supports the following to clarify protections and responsibilities, community organisations recommend and:

• Amending the DDA to include a clear definition of assistance animals and specify training, hygiene, and behaviour standards.
• Establishing a national register or certification system for assistance animals.
• Providing duty holders with clear guidance on what documentation is acceptable and how to respond to assistance animal users.
• Launching public education campaigns to improve awareness and reduce stigma.

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

MHCC and other community organisations have expressed strong support for using a combination of legislative amendments and guidance materials to balance flexibility and certainty in disability law reform particularly in relation to the DDA.

MHCC agrees with NDS in their support for a sequenced reform agenda that includes:

• Legislative amendments to clarify rights and obligations.
• New standards and guidance materials to support providers and duty holders.
• A multi-channel communication strategy to ensure stakeholders understand and can implement changes effectively47.

This approach is designed to minimise unintended consequences and ensure reforms are practical, inclusive, and sustainable.

In the Australian Human Rights Commission (AHRC) Free & Equal Reports,48 they recommend:

• A shift from reactive to proactive regulation, including a positive duty to prevent discrimination.
• Responsive regulation, which combines enforceable legal standards with flexible guidance to support compliance.
• Strengthening the Disability Standards and making them more enforceable, while also providing clear explanatory materials.

A combination of legislative amendments and guidance materials helps:

• Ensure legal certainty for people with disability and duty holders.
• Support flexible implementation across diverse settings.
• Promote cultural change through education and capacity building.
• Reduce litigation risk by clarifying expectations and responsibilities.

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

MHCC does not support specific training organisations being prescribed under the Disability Discrimination Regulations. Instead of targeting specific training bodies to be prescribed, the DDA and Disability Discrimination Regulations should continue to place the responsibility on all training providers to meet existing legal obligations under the DDA and DSE. The goal is to ensure that all students with disabilities can participate in education on the same basis as others.

If specific training organisations were to be prescribed, MHCC proposes the following essential caveats:

• The prescription process is inclusive, flexible, and co-designed.
• It allows for diverse, community-led and non-mainstream training pathways.
• It avoids entrenchment or monopolisation by large providers.
• It continues to support responsibility and legal obligations on all training providers.
• It is supported by guidance materials, public education, and legal protections.

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

MHCC advocates for inclusive, rights-based education and training and support for minimum standards and quality assurance in training delivery. In line with the AHRC, MHCC supports the use of Disability Action Plans (DAPs)49 and recommends:

• That DAPs be well-publicised, thoroughly prepared, and submitted to the Commission.
• That they include clear goals, timelines, and accountability mechanisms.
• That they promote equal access to services, employment, education, and public life for people with disability.

The NSW Disability Inclusion Action Planning Guidelines50 outline minimum requirements for Disability Inclusion Action Plans (DIAPs), including:

• Executive ownership and governance structures
• Mapping of services, facilities, and information
• Consultation and co-design with people with disability
• Monitoring, evaluation, and reporting frameworks
• Accessibility standards, including universal design and digital access
• Promotion and staff training to embed inclusion across organisations.

MHCC supports these guidelines as an example of what was developed to ensure that action plans are not just symbolic but lead to measurable improvements in inclusion and access including:

• Prescribing minimum requirements for action plans through guidelines or regulations is important, ensuring action plans include consultation, accountability, accessibility, and evaluation.
• Using action plans as tools to operationalise inclusion, not just meet compliance.
• Supporting training organisations that meet inclusive education standards, especially for disability-related services51.

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

Currently, the Australian Human Rights Commission (AHRC) does not have the power to reject Disability Action Plans (DAPs) that fail to meet specific requirements under the DDA. MHCC propose that more consultation should occur with community organisations and legal experts about whether such a power should be introduced to improve the quality and accountability of DAPs, and which is the body or bodies that should hold that power.

Under Section 64 of the DDA, organisations may submit their DAPs to the AHRC, and these plans are then published on the Disability Action Plan Register, but registration does not imply endorsement by the Commission. The AHRC provides the Disability Action Plan Guide52 to help organisations develop meaningful and effective plans, but it does not assess or reject plans based on quality or compliance.

MHCC cannot advise whether the AHRC is the most appropriate body that could be given the legal authority or resources to accept or reject inadequate DAPs or request revisions; and be publicly accountable for oversight and reporting. Our advocacy is that we would support a mechanism improves the quality and credibility of DAPs, that is rights-based, accountable, and fosters inclusive practices that:

• Ensure DAPs are meaningful, not symbolic.
• Promote co-design with people with disability.
• Include minimum standards for accessibility, consultation, and implementation.
• Aligns with international human rights standards and recommendations from the Disability Royal Commission.

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

MHCC agree with the AHRC’s Disability Action Plans & Plan Guides53 in that they support the idea of time-bound, regularly reviewed action plans to ensure they remain relevant, effective, and accountable. They encourage organisations to develop DAPs that are:

• Short, action-oriented, time-sensitive, and measurable.
• Designed to be updated and improved over time, with amendments submitted to the Commission.
• Published on the Disability Action Plan Register, though registration does not imply endorsement.

While the AHRC does not mandate a fixed validity period, it clearly supports plans with defined timeframes and review cycles, and MHCC agree.

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

In the interests of accountability, co-design, and continuous improvement MHCC suggest:

• Setting a validity period (e.g. 3–5 years) for DAPs.
• Requiring periodic review and renewal.
• Linking validity to measurable outcomes and stakeholder consultation.
• Include processes to improve effectiveness, accountability, and inclusiveness.

This approach ensures DAPs remain living documents, responsive to changing needs and aligned with best practices.

the NDIS Quality and Safeguards Commission, and contributors to the Community Attitudes Targeted Action Plan (TAP)54 have recommended changes to the Disability Action Plan (DAP)55 which introduce minimum standards and guidelines

The AHRC recommends that DAPs be short, action-oriented, time-sensitive, and measurable. It encourages organisations to use its Disability Action Plan Guide to ensure plans are meaningful and promote inclusion. DAPs should include clear goals, timelines, consultation processes, and monitoring mechanisms.

• Set Validity Periods and Review Cycles The NDIS Commission’s DAP is structured as a 5-year plan, with built-in review and consultation processes. This model supports the idea of time-bound plans that are regularly updated to reflect evolving needs and priorities.

• Co-Design with People with Disability Both the NDIS Commission and the Community Attitudes TAP stress the importance of co-designing DAPs with people with lived experience, ensuring that plans are responsive, inclusive, and grounded in real-world challenges56.

• Improve Monitoring and Accountability The Community Attitudes TAP recommends focused indicators that demonstrate improvement rather than arbitrary targets. It also supports ongoing services and actions that extend beyond the formal end date of a DAP, ensuring continuity and impact.

• Align with Broader Disability Reform DAPs should align with national frameworks such as:

  • Australia’s Disability Strategy 2021–2031
  • UN Convention on the Rights of Persons with Disabilities (CRPD)
  • Recommendations from the Disability Royal Commission.

• Enhance Accessibility and Transparency It also recommends publishing DAPs on the Disability Action Plan Register to promote transparency and allow public feedback.

In summary, MHCC recommend that the DAP process be strengthened through:

• Minimum content requirements (e.g., goals, timelines, consultation).
• Defined validity periods (e.g., 3–5 years).
• Mandatory review and renewal cycles.
• Co-design with people with disability.
• Public reporting and accountability mechanisms.
• Alignment with national and international disability rights frameworks.

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

MHCC’s publication Embracing Change: NDIS Practice Standards Guidebook57 outlines several strategies relevant to improving compliance with disability standards, particularly for psychosocial disability services:

• Capacity building through education and training: MHCC emphasises the need for practical resources and sector readiness tools to help providers understand and implement standards effectively.
• Quality indicators and self-assessment tools: These help organisations monitor their own compliance and identify areas for improvement.
• Co-designed resources: MHCC advocates for materials developed in partnership with people with lived experience to ensure relevance and accessibility.

While MHCC’s guide focuses on NDIS Practice Standards, the principles are directly applicable to broader Disability Standards under the DDA.

The AHRC has identified several ways to improve enforcement of Disability Standards58 which we believe have merit:

• Clarify legal obligations through updated guidelines and advisory notes.
• Strengthen monitoring mechanisms, including public reporting and feedback loops.
• Encourage the use of Disability Action Plans (DAPs) as a proactive compliance tool.
• Promote awareness and education among duty holders to reduce unintentional non-compliance.

The Attorney-General’s Department Review59 prompted by the Disability Royal Commission, includes consideration of the following, all which MHCC agree with:

• Implementing 15 accepted recommendations, many of which relate to improving enforcement and accountability including:
  • Mandatory reporting and review cycles for Disability Action Plans.
  • Clearer definitions and standards for compliance, especially in education, transport, and premises access.
  • Accreditation and training for duty holders to ensure understanding of obligations.
  • Public accountability mechanisms, such as publishing compliance outcomes.
  • Co-designed tools and resources to support implementation and cultural change.
• Modernising the Act to ensure it remains fit for purpose and responsive to contemporary challenges.
• Consultation with the disability community to ensure reforms reflect lived experience and practical needs.

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

In reviewing the ECNI Guidance on Disability Action Plans60 which apply in Northern Ireland we find a structured approach to DAPs that includes:

• Public authorities are expected to collate and produce annual evaluations of their DAPs to benchmark current practices and record success in implementing disability duties.
• Authorities are encouraged to review their arrangements regularly and follow through on commitments made in their plans.
• There is a legitimate expectation and public law obligation that authorities will adhere to the arrangements set out in their DAPs.

This model supports the idea of self-reporting as a compliance tool, helping duty holders reflect on their progress and maintain transparency.

Although ECNI guidance applies to Northern Ireland, its principles are highly relevant to what MHCC, and other community organisations have consistently advocated for:

• Stronger accountability mechanisms in DAPs.
• Regular review and renewal cycles.
• Public reporting of outcomes to ensure transparency and continuous improvement.

Amending the DDA to include a requirement or strong encouragement for duty holders to self-report on compliance with Disability Standards is recommended including:

• Reporting templates or guidelines to standardise the process.
• Linking self-reporting to public accountability, benchmarking, and continuous improvement.

47. Could the Australian Human Rights Commission provide additional guidance to duty holders regarding how to self-report on the Disability Standards in disability action plans?

MHCC supports the idea of providing additional guidance to duty holders on how to self-report compliance with Disability Standards in Disability Action Plans (DAPs). The AHRC already provides a Disability Action Plan Guide, which:

• Helps organisations develop DAPs that are short, action-oriented, time-sensitive, and measurable.
• Encourages organisations to submit their plans to the Disability Action Plan Register, making them publicly accessible.
• Promotes transparency and accountability, allowing people with disability to see what commitments have been made and provide feedback61.

The AHRC also publishes non-binding guidance and advisory notes to help organisations meet their responsibilities under the DDA. These include:

• Sector-specific guides (e.g. for insurance, employment, ICT).
• Accessibility guidelines (e.g. for bus stops, web access).
• Resources for managers and service providers62.

This framework could be expanded to include specific guidance on self-reporting compliance with Disability Standards, especially within DAPs.

MHCC adds to the guidance above by highlighting the needs to ensure that when service providers self-report in DAPs, that they have embedded:

• Rights-based, trauma-informed, and recovery-oriented practice.
• Systemic reform and legislative clarity.
• Capacity-building through education and resources.

MHCC also supports models that reduce regulatory burden while promoting accountability and best practice, which aligns with the idea of structured self-reporting supported by AHRC guidance which must provide practical guidance that helps duty holders understand and meet their obligations63.

We would like to see the AHRC providing:

• Templates or reporting frameworks for DAPs that include compliance indicators.
• Sector-specific examples of good practice in self-reporting.
• Training and webinars to help duty holders understand how to assess and report compliance.
• Accessible formats for all guidance materials to ensure usability across diverse organisations.

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

In its submission to the NSW Law Reform Commission,64 MHCC highlighted several areas where legislative reform could improve protections for people with psychosocial disabilities and intersecting identities:

• Positive obligations: Introducing proactive duties for employers and service providers to prevent discrimination, like provisions in other jurisdictions like Victoria’s Equal Opportunity Act.
• Intersectional discrimination: Recognition of multiple and overlapping forms of discrimination, such as those based on mental health, race, gender, and disability. This mirrors reforms in ACT and Victoria that explicitly address intersectionality.
• Simplification and clarity: Modernising legal language and simplifying processes to make the law more accessible, especially for people with lived experience of mental health challenges.
• Adoption of the social model of disability in legislation, shifting focus from impairment to societal barriers.
• Reform of the complaints mechanism to make it more accessible, inclusive, and affordable.

49. What additional guidance materials should be provided to the community, including duty holders, about the operation of the Disability Discrimination Act or specific amendments proposed in this paper?

MHCC calls for additional guidance materials to support the community and duty holders in understanding and applying the DDA especially in light of proposed reforms. In its 2023 report Realising the Rights of People with Disability65, MHCC supported:

• The development of an Australian Disability Rights Act to translate human rights principles into enforceable obligations.
• Amendments to the DDA that reflect the UN Convention on the Rights of Persons with Disabilities (UNCRPD).
• The creation of accessible information and diversity supports to help people with disability understand their rights.
• Co-designed resources and peer-led education to build capacity for self-advocacy and service delivery.

MHCC’s emphasis is on inclusion, accessibility and co-design, as well as developing practical, user-friendly resources for both people with disability and duty holders. We acknowledge that the AHRC already provides a wide range of non-binding guidance materials, but all resources must be updated to align with the amended DDA as finally proclaimed to continue to best help duty holders understand their responsibilities and reduce the risk of discrimination.

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

MHCC’s proposals for a ‘fit for purpose’ DDA focus on legislative reform, rights-based frameworks, and inclusive implementation strategies.

In its report Realising the Rights of People with Disability66 and its recent submission to the Law Reform Commission 67, MHCC outlines a comprehensive vision for modernising the NSW ADA and DDA:

• Translate human rights principles into enforceable obligations under domestic law.
• Amend the DDA to reflect the UNCRPD and include supported decision-making and intersectional protections.
• Establish a role for the Disability Discrimination Commissioner or another appropriate mechanism to oversee implementation and enforcement.
• Promote co-design and self-determination, ensuring people with disability are central to reform processes.
• Support peer-led advocacy and informal supports to build capacity for self-advocacy.
• Reform mainstream services (e.g., education, housing, health) to remove systemic barriers and improve outcomes.
• Introduce a “positive duty” requiring duty holders to proactively prevent discrimination.
• Modernise definitions of direct and indirect discrimination.
• Strengthen the Disability Standards to make them more enforceable.
• Ensure consistency across anti-discrimination laws, reducing confusion and improving compliance.
• Simplify the legal framework to make rights and obligations easier to understand.

51. Are there any other issues with the Disability Discrimination Act that should be considered as part of this review?

MHCC has raised several additional concerns and recommendations regarding the DDA (and the NSW ADA) that should be considered in its review. These go beyond the specific reform questions and reflect broader systemic and rights-based priorities:

• Promote supported decision-making and reform guardianship laws to align with the amended DDA.
• Explicitly address intersectionality, where disability intersects with race, gender, culture, and other identities.
• Include protections for people facing multiple forms of discrimination
• Address the complexity of legal processes and limited capacity within complaint-handling bodies.
• Co-design reforms to ensure accessibility and usability of legal protections.
• Shift to the social model of disability and foster an anti-discrimination culture in the community.
• Supporting peer-led advocacy and informal supports.
• Ensuring people with disability are empowered to lead and co-design reforms.

FINAL COMMENT

MHCC acknowledge that there is a good deal of repetition in our submission. This was unavoidable because of the overlapping applicability across the very large number of specific questions. However, we have tried to precisely answer each question (despite the duplication) in the hope that this will assist the reviewers in collating responses. We chose to do this rather than continuously referring to other comments.

We thank the reviewers of the DDA for the opportunity to consult with them and look forward to the outcomes of this review, and to the development of more contemporary legislation fit for the next decade.

Corinne Henderson Mental Health Coordinating Council Director, Policy & Systems Reform E: redacted: s47F

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