Every day, legal assistance providers assist people with disability who have experienced discrimination in workplaces, schools, housing, services, and other areas of public life. We see how gaps in the law and enforcement frequently leave people continuing to face barriers and unable to access real remedies.
We welcome the Australian Government’s review of the Disability Discrimination Act 1992 (Cth) (DDA). We strongly support legislative reforms that implement and build on the Disability Royal Commission (DRC) recommendations and align with the UN Convention on the Rights of Persons with Disabilities.
There is significant scope to improve the way the DDA is operating to protect against discrimination for people with disability. Reform must shift the DDA from a complaints-driven system that relies on individuals - often without resources and against well-resourced respondents - to carry the weight of systemic problems, towards proactive prevention of discrimination, systemic compliance and access to justice. We are calling for a positive duty to prevent disability discrimination, a modern regulatory role for the Australian Human Rights Commission (AHRC) including strengthened powers, a standalone duty to make adjustments, clear legal tests that do not unfairly burden complainants, stronger Disability Standards and effective remedies - so that inclusion is planned for, measured and enforced.
We support reforms to:
- Introduce an enforceable positive duty to eliminate disability discrimination. The duty should have broad application to all duty holders under the DDA who should be legally required to take reasonable and proportionate steps to eliminate discrimination, harassment and victimisation.
- Give the AHRC modern regulatory powers. The AHRC should be equipped with powers to conduct own-motion investigations, pursue enforcement action (including commencing proceedings), issue compliance notices, enforceable undertakings and infringement notices. Reforms should enable targeted audits, sector guidance, and court enforceable outcomes, so the burden does not continue to fall on individuals.
- Create a clear, standalone duty to make adjustments. The DDA should include a practical, timely obligation to identify and implement adjustments. Reforms should require transparent decision-making and consultation about adjustments with written reasons for refusals, especially in education, employment and essential services.
- Clarify legal tests and definitions. Reforms are needed to simplify the definitions of direct and indirect discrimination, including to remove the comparator test and rebalance the burden of proof. Reforms should focus on the effects of conduct and disadvantage experienced by people with disability. Simplifying the legal tests would also assist duty holders to understand their legal obligations.
- Expressly recognise intersectional discrimination to ensure protections and remedies reflect compounding discrimination and disadvantage across gender, race, age, migration status, sexuality and other attributes.
- Protect the right to learn by requiring education authorities to avoid the use of exclusionary discipline, including suspensions, on students with disability unless necessary as a last resort when all other measures, interventions, supports and options have been exhausted and documented.
- Protect safety and dignity by requiring all other measures, interventions and supports to be provided before restrictive practices are used.
- Modernise and enforce Disability Standards. For example, update the Disability Standards for Education to set clearer minimum requirements (including reasonable timeframes for adjustments, necessary disability support, limits on exclusionary discipline, transitions and complaint handling). Reforms should require monitoring, public reporting and sanctions for non-compliance with all Standards.
- Cover interactions with government authorities including police, corrections, and child protection. Reforms should ensure the DDA protects against discrimination by all government agencies. This should include the full range of policing duties to ensure protection for victims, witnesses, suspects and people accused or found guilty of a crime, and interactions with child protection and corrections agencies as a priority.
- Prohibit disability vilification and strengthen protections against harassment and hateful behaviour. Add a federal prohibition on disability vilification and modernise harassment provisions across work, education, services and online contexts, with appropriate thresholds, defences and regulatory powers.
- Include systemic remedies and a civil penalty regime to maximise impact. Implement the ALRC’s recommendations to clarify that courts can make orders to deter and prevent further discrimination, for example by requiring duty holders to take corrective action, engage in training or take other specific actions, and/or pay a civil penalty for any breach of the DDA.
- Strengthen liability to ensure that workers in complex supply chain arrangements are protected from disability discrimination, and vicarious and accessorial liability provisions hold duty holders to account.
- Improve equitable access to justice by addressing jurisdictional challenges and inconsistencies. Amendments should remove barriers to bringing a complaint under the DDA if an application was filed in another jurisdiction but withdrawn before being decided (for example if an unrepresented applicant filed in the wrong forum before receiving legal advice).
- Data, transparency and accountability. Require large public and private entities to publish accessibility metrics which includes an intersectional lens (for example adjustments granted and refused, response times, and complaints data), introduce a requirement for the AHRC to publish reports on its investigations into organisations, and restrict the use of non-disclosure agreements.
- Centre lived experience, guided by the leadership and participation of people with disability.
To ensure DDA reforms achieve their aims, we need:
- Resourcing and support. A critical component of any reforms will be funding the AHRC to educate, audit and enforce; investing in accessible information; and ensuring dedicated funding for specialist advocacy and legal assistance.
- Practical measures to support compliance. For example, clear statutory guidance on how to comply with the positive duty, and examples of adjustments.
- First Nations leadership. Government must partner with and fund First Nations organisations to ensure reforms centre culture, community control and on-Country accessibility, and commit funding for Aboriginal Community-Controlled Organisations (ACCOs) to provide legal assistance for Aboriginal and Torres Strait Islander people with disability to access civil justice remedies including for disability discrimination.
- Government leadership. Government should lead the way by embedding accessibility in procurement, ensuring agency compliance and strengthening Model Litigant obligations in disability matters.
- Evaluation. Government must resource an independent evaluation framework which incorporates an intersectional lens, so government and the community can see whether reforms are working.
While we welcome the government’s move to improve the DDA, we also reiterate the need for broader reform of Australia’s discrimination laws to streamline, consolidate and update federal discrimination laws into a single statute to build a more equitable, accessible and proactive discrimination framework. Alongside this, Australia needs a national Human Rights Act to provide for a more complete and streamlined equality framework that safeguards and promotes fundamental human rights, including for people with disability. We urge government to commit to progressing these important reforms.
In the interim, we call on government to commit to passing legislative amendments to strengthen the DDA in this term. Our organisations are ready to work with the Attorney-General’s Department to ensure the reforms make a real difference in the daily lives of people with disability.
Signatories & Logos
(If you belong to a legal or advocacy organisation and wish to join as a signatory, please contact NLA@nationallegalaid.org.au)
Advocacy Law Alliance Ltd
AED Legal Centre
Australian Centre for Disability Law
Canberra Community Law
Caxton Community Legal Centre
Community Legal Centres Australia
Disability Advocacy Victoria
Disability Discrimination Legal Service
Dyslexia Victoria Support
Federation of Community Legal Centres (Victoria) Inc
First Nations Advocates Against Family Violence
Intellectual Disability Rights Service
Justice and Equity Centre
National Aboriginal and Torres Strait Islander Legal Services (NATSILS)
Northern Community Legal Centre
National Legal Aid
Melbourne East Disability Advocacy
Queensland Advocacy for Inclusion
Regional Disability Advocacy Service
South-East Monash Legal Service
University of Melbourne Student Union Legal Service
Westjustice
Women's Legal Service Victoria
Working Women's Centre Victoria
Women with Disabilities Victoria
