National Legal Aid are grateful for the opportunity to provide a submission to the Review of the Disability Discrimination Act 20205. Provided below are the About National Legal Aid, executive Summary, and Summary of Recommendations sections of our submission, however the full version can be downloaded to the right and below.
About National Legal Aid
Who are we?
National Legal Aid represents the eight independent Legal Aid Commissions in each state and territory of Australia. These Commissions work collaboratively to deliver essential legal services, making sure that justice is accessible to all Australians. We strive to support those who are most in need, ensuring fair and equitable legal outcomes. Legal Aid Commissions are independent, statutory bodies established by respective state or territory enabling legislation and funded by Commonwealth and State or Territory governments to provide legal assistance to people.
What do we do?
Legal Aid Commissions are the largest providers of legal services to people with disability across Australia, including grants of aid for ongoing legal representation, duty lawyer services at courts and tribunals, legal advice, family dispute resolution conferences, community legal education, and information and referrals. Each year, we provide 1.7 million legal assistances. 25 percent of our clients receiving legal representation have a disability (National Legal Aid Strategic Plan 2025-2030). The Australian Government also funds Legal Aid Commissions in each state and territory to provide specialist legal advice and representation for NDIS appeals to the Administrative Review Tribunal (ART).
Legal Aid Commissions create resources, in consultation with clients with disability lived experience, which address specific legal issues that impact on people with disability in a range of formats that address different communication needs, including audio description, Auslan, easy read, videos with closed captions, and website-based audio functions. Legal Aid Commissions run legal education sessions for disability organisations and community members to help people identify, understand, and access legal services.
Why do we do it?
Our shared vision is that all people experiencing disadvantage have access to legal assistance and fair justice outcomes that contribute to safe, thriving families and communities. We are the ‘safety net’ of the legal system – there to assist families and individuals in times when they are in highest need. Our clients include people most in need of legal assistance including First Nations peoples, victim-survivors of domestic and sexual violence, and people with disabilities.
Executive Summary
Every day, Legal Aid Commissions assist people with disability who have experienced discrimination in workplaces, schools, housing, services, policing, prisons, 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.
National Legal Aid (NLA) welcomes 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 (CPRD).
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.
While reform of the DDA is welcome, Australia needs a modern, proactive, and rights-affirming equality framework. We urge the Australian Government to consolidate and streamline federal discrimination laws into a single, coherent statute, and adopt a Federal Human Rights Act, to ensure that the DDA operates within a broader human rights framework that protects equality and dignity for all people, including people with disability.
We call for any reforms to the DDA to centre the voices and rights of people with disability, and to prioritise prevention and systemic change. We welcome the opportunity to work with government to ensure DDA reforms make a real difference in the daily lives of people with disability.
Summary of Recommendations
National Legal Aid makes the following recommendations:
A more equitable, accessible and proactive discrimination framework
1. That government streamline, consolidate, and update Australia’s federal discrimination laws into a single statute to build a more equitable, accessible, and proactive discrimination framework.
2. That government commit to progressing a federal 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.
Definition of disability
3. That the definition of disability be modernised to move away from medicalised and deficit-based language.
4. That disability should be broadly defined in the DDA, inclusive of psychosocial, episodic, and invisible disabilities and with sufficient flexibility to accommodate evolving understanding of disability, and recognise that people may be living with multiple disabilities.
5. That any reforms to the definition of disability be undertaken in close consultation with the disability community.
6. That the definition of disability in the Fair Work Act 2009 (Cth) be updated to expressly include any updated definition that is adopted in the DDA.
Addressing intersectionality
7. That the DDA be amended to expressly recognise intersecting discrimination and allow complaints to be brought for multiple or combined protected attributes.
8. The definitions of direct and indirect discrimination in the DDA should be amended to allow a persons’ attributes and characteristics to be considered as part of the legal test by including the following: For the purpose of this section, in determining if a person has experienced a detriment because of their disability, this may be a cumulative detriment which is because of a combination of their disability and one or more of the following other characteristics of the person including; race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
9. That the government undertake further consultation in relation to whether section 351 of the Fair Work Act 2009 (Cth) should be amended to clarify that tests of direct and indirect discrimination for all attributes in federal equality laws are able to be imported to a Fair Work Act 2009 (Cth) claim.
Definition of direct discrimination
10. That the DDA be amended to remove the comparator test.
11. That the DDA adopt the definition of direct discrimination in section 8 of the Equal Opportunity Act 2010 (Vic) including the unfavourable treatment test.
12. That the DDA adopt sections 9(4) and 10 of the Equal Opportunity Act 2010 (Vic) to confirm that motive or awareness is not relevant when considering whether a person discriminates.
13. That the DDA objectives be strengthened and broadened in line with the Equal Opportunity Act 2010 (Vic) – for example to include that an object of the DDA is to encourage the identification and elimination of systemic causes of discrimination.
14. That the burden of proof should be rebalanced by adopting provisions based on section 47A of the Respect at Work and Other Matters Amendment Act 2024 (QLD).
Definition of indirect discrimination
15. That the DDA definition of indirect discrimination be amended to: remove the comparator test; adopt the detriment test; and replace the reasonableness element and unjustifiable hardship defence with a legitimate and proportionate test.
16. That the DDA definition of indirect discrimination be amended to clarify that policies or practices that disproportionately disadvantage people with disability may constitute discrimination, even if unintentional, and include that ‘creating an environment in which a person with a disability is disadvantaged is taken to be imposing a condition or requirement’.
17. That DDA amendments to the definition of indirect discrimination be accompanied by clear, plain language guidance and that examples be developed and included to support understanding and implementation by people with disability and duty holders.
18. That the DDA be amended to remove subsection 6(1)(b) in relation to a person’s ability to comply.
Interpreting the DDA in line with the CPRD
19. That the DDA should be amended to clarify that one of its aims is to give effect to the Convention on the Rights of People with Disabilities.
Positive duty for duty holders to prevent discrimination
20. That the DDA definition of indirect discrimination should be amended to: remove the comparator test; adopt the detriment test; and replace the reasonableness element and unjustifiable hardship defence with a legitimate and proportionate test.
21. That the DDA should be amended to include a positive duty for duty holders to eliminate discrimination.
22. That the positive duty should have broad application to all duty holders.
23. That the AHRC should be granted the power and resourced to: conduct own motion investigations; compel evidence; agree to enforceable undertaking; issue compliance notices, and issue administrative penalties.
24. That the AHRC should be required to publish reports on its investigations into organisations.
25. That Guidelines should be given greater regulatory force.
26. That affected individuals and registered organisations or unions should be able to bring their own claims for breach of the positive duty.
27. That government implement Recommendation 50 of the Australian Law Reform Commission’s Report ‘Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence’, that section 46PO of the Australian Human Rights Commission Act 1986 (Cth) be amended to clarify that the power given to courts to make orders extends to the making of orders that have the objective of deterring or preventing further contravening conduct, and to include relevant examples of orders that can be made.
28. That the Australian Human Rights Commission Act 1986 (Cth) be amended such that a person found to have contravened the positive duty in the DDA may be ordered to pay a civil penalty.
29. That government consider how models of liability (including accessorial and vicarious liability) could be utilised in conjunction with a positive duty in the DDA to place a clearer obligation on duty holders to proactively prevent and address disability discrimination including in complex labour hire and other precarious work arrangements.
30. That liability for unlawful conduct under the DDA be attributed to duty holders in circumstances where they have failed to comply with the duty, as well as when they have failed to take all reasonable steps to prevent the contravention.
31. That government commit adequate resources to the development of educational and guidance materials to support the implementation of the positive duty.
Strengthening the duty to provide adjustments
32. That the DDA be amended to insert a new section 6A, modelled on section 20 of the Equal Opportunity Act 2010 (Vic), making it unlawful to fail to provide adjustments. The duty should be stand-alone and enforceable, not contingent on proving causation.
33. The duty to make adjustments should apply consistently across all areas of public life.
34. That the word ‘reasonable’ should be removed from the duty to provide adjustments
35. Reforms should include a requirement for duty holders to consult about adjustments with the person requesting them, require transparent decision-making including timely written reasons, and review rights for refusals.
36. The duty to make adjustments should include an obligation on duty holders to undertake an assessment to identify the scope of and need for the adjustment.
37. The DDA duty to provide adjustments should be accompanied by guidance for duty holders and people with disability, as well as clear examples.
38. In designing the standalone duty, the interoperability of DDA requirements with the National Disability Insurance Scheme should be considered to ensure people with disability are not left without supports in circumstances where supports are refused by the National Disability Insurance Agency on the basis that they should instead be provided by way of an adjustment under the DDA.
Definition of and considerations for unjustifiable hardship
39. That the DDA be amended to implement Recommendation 4.32 of the DRC.
40. That the DDA amendments in relation to unjustifiable hardship provisions should clarify that mere inconvenience, or the expenditure or resources, should not in and of itself constitute unjustifiable hardship.
41. That, if a respondent is seeking to rely on the ‘unjustifiable hardship’ exemption, the DDA should compel disclosure by the respondent of financial documentation regarding the proposed cost of special services and facilities/adjustments or other relevant information.
Inherent requirements of work
42. That the DDA be amended to require consultation with the employee before making employment decisions, to ensure transparency and support informed, fair outcomes, and that "consultation" be defined to require meaningful engagement with the employee.
43. That the DDA be amended to clarify the concept of inherent requirements, including through practical examples, to assist both employers and employees in understanding their rights and obligations.
44. That the DDA be amended to encourage flexible work arrangements and inclusive recruitment practices, to promote equal participation and reduce barriers for people with disability, including by amending subsection 15(2)(b) of the DDA to include reference to denying opportunities for reduced hours or part-time work.
45. That section 351 of the Fair Work Act 2009 (Cth) be amended to ensure consistency with the DDA.
46. That the DDA be amended to make it clear that duty holders must limit requests for information to that which is necessary to assess whether the person can perform the inherent requirements of the role and/or identify the adjustments required.
Exclusionary discipline and suspension
47. That concepts of exclusion and exclusionary discipline be defined in the DDA to include expulsion, formal and informal suspensions, seclusion, and restricted attendance.
48. That DDA amendments adopt the principle that exclusionary discipline must be avoided unless necessary as a last resort to avert the risk of serious harm to the student, other students, or staff when all other measures, interventions, supports, and options have been exhausted and documented.
49. That guidelines be developed to ensure adjustments are available and appropriately used in schools, that schools comply with their obligations under the Disability Standards for Education Reforms, to require transparency around the provision of adjustments in schools and to require streamlined complaint processes for when requests for adjustments are refused.
Offensive behaviour and vilification protections
50. That the DDA be amended to give effect to the DRC’s Recommendations 4.29 and 4.30 to implement clear civil prohibitions on offensive conduct and vilification based on disability.
51. That any exemptions to prohibitions on offensive, harassing, and vilifying behaviour should be considered only where necessary and narrowly framed, such as to protect legitimate freedom of expression - consistent with exemptions in the Racial Discrimination Act 1975 (Cth).
52. That the AHRC be resourced to provide clear guidance on conduct likely to fall within and outside of exemptions in the DDA.
53. That ‘public act’ be defined to include online spaces.
54. That ‘conduct’ be defined to include conduct that is seen or heard by the public in addition to conduct that is intentionally directed to the public.
Services provided by police
55. That section 29 of the DDA be amended to make it unlawful for a person who performs any function or exercises any power or responsibility under the authority of government to discriminate against another person on the ground of the other person’s disability in the performance of that function, the exercise of that power, or the fulfilment of that responsibility.
56. That the Commonwealth coordinate a program of work with State and Territory governments to amend the governing legislation for police in each state and territory to impose a duty on police to exercise their powers and functions without discrimination.
Exemptions
57. That government ensure the DDA, Migration Act 1958 (Cth), and Migration Regulations are consistent with its obligations at international law and in particular Article 5 of the CRPD.
58. That the DDA (and the Insurance Contracts Act 1984 (Cth)) be amended to ensure that the statistical and actuarial evidence and other material relied upon by an insurer under the exemption in section 46 of the DDA be made available on request, and that this evidence be regularly reviewed for currency.
59. That the AHRC be given the power to officially approve special programs that help people with disability – like targeted jobs or housing initiatives – by giving out certificates that confirm these programs are lawful, accompanied by clear rules and oversight.
60. That the DDA be amended to include clear definitions for special measures and temporary exemptions.
61. That the legislative process for granting temporary exemptions should be streamlined by establishing clear, transparent criteria to guide decision-making, and reforms should clarify that temporary exemptions should only be provided in genuinely exceptional cases where compliance is not practically achievable in the immediate future.
Assistance animals
62. That the requirement for evidence of “standards of hygiene and behaviour that are appropriate for a public place” should be removed.
63. Legislative amendments should broaden the definition of assistance animals to better reflect lived experience and evolving case law, including recognising assistance animals that support psychosocial disabilities and are trained by their owners.
64. Guidance materials should: outline acceptable forms of evidence that an animal meets the criteria of an assistance animal, including behavioural reliability and the nature of support provided—not just formal training credentials; provide practical examples of assistance animals across a range of disability types; clarify evidentiary expectations for entry into public spaces; and offer duty holders clear protocols for assessing compliance without infringing on individual rights.
65. Duty holders should be educated on the broader scope of assistance animals to avoid unlawful exclusion based on assumptions about certification.
66. Specific training organisations should be prescribed under the Disability Discrimination Regulations, however regulations should allow for multiple pathways to recognition, including owner-led training.
67. The prescription of training organisations must ensure that these services are accessible, affordable, and available to people in regional and rural areas.
Disability standards
68. That the AHRC be granted investigation and compliance powers, power to issue enforceable undertakings, and the ability to seek penalties.
69. That the AHRC be resourced to issue compliance guidelines and systemic recommendations.
Other options for reform
70. That subsection 13(4) of the DDA be removed.
71. That the AHRC be provided with discretion to accept a complaint that has previously been lodged in a state jurisdiction.
72. That the DDA be amended to restrict the use of non-disclosure agreements (NDAs), modelled on the best practice components of section 14B of Ireland’s Employment Equality Act 1998.
73. Time limits for making complaints under the DDA be extended to six years.
Implementation
74. That in preparing for the implementation of any reforms as a result of the review of the DDA, the government commit to:
a. 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.
b. Practical measures to support compliance: For example, clear statutory guidance on what “reasonable and proportionate” looks like in common settings, and examples of reasonable adjustments.
c. 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 ACCOs to provide legal assistance for Aboriginal and Torres Strait Islander people with disability to access civil justice remedies including for disability discrimination.
d. Government leadership: Government should lead the way by embedding accessibility in procurement, ensuring agency compliance, and strengthening Model Litigant obligations in disability matters.
e. Evaluation: Government must resource an independent evaluation framework so both government and the community can see whether reforms are working.