Over 5 million Australians live with a disability; however, many continue to experience discrimination and inequality in various areas of their lives.
In 2019, the Australian Government established the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability in response to community concern about unequal and unjust treatment of people with disability. Four and a half years later, and following an extensive review of disability policies and services, the Royal Commission handed down its Final Report. That report makes 222 recommendations as to how the government, institutions, and the community can improve equality for people with disability. In response, the Australian Government accepted, in principle, the 15 recommendations directly relating to the Disability Discrimination Act 1992 (the DDA), and launched a comprehensive review of the DDA.
In our submission to the Attorney-General’s Department, Basic Rights Queensland (BRQ) has called on the Australian Government to urgently reform the DDA to ensure it is adequately protecting people with disability. Our submissions draw on the lived experiences of our clients who have been excluded and marginalised in public life because of weak procedures, policies, and attitudes.
Why reform is needed
Violence, abuse, neglect and exploitation of people with disability comes at a significant cost to the Australian economy. Some researchers estimated that cost to be $74.7 billion in the 2021/22 financial year.
In its current form, the DDA does little to prevent discrimination before it occurs, creates barriers to accessing justice, is inconsistent with the Racial, Sex and Age Discrimination Acts, and does not reflect contemporary standards and attitudes surrounding disability. The DDA is reactive in nature and places little pressure on employers and persons conducting a business or undertaking (PCBUs) to actively eliminate disability-based discrimination.
These shortcomings compound the harm experienced by people with disability when they are directly or indirectly discriminated against, and hinders people with disability from actively and equally participating in all areas of public life.
What we are calling for
BRQ calls for the following reform to the DDA:
- Introducing a positive duty to proactively prevent discrimination – A positive duty will mean employers and PCBUs must take reasonable steps to eliminate discrimination, signifying a shift from a reactive to a proactive approach to discrimination prevention.
- Clarifying and strengthening the duty to make ‘reasonable adjustments’ – PCBUs should be required to consult with people with disability and consider all practical options in making adjustments.
- Ensuring the DDA specifically recognises and addresses intersectionality – People with intersecting identities should be allowed to bring a discrimination claim based on multiple or combined protected attributes.
- Updating definitions and requirements surrounding assistance animals – There should be uniform, simplified and nationally-recognised regulations and accreditation pathways regarding assistance animals.
- Revising the assessment of ‘inherent requirements’ – Establish clear criteria and safeguards so decisions on inherent requirements consider reasonable adjustments first and do not unfairly exclude people with disability.
- Revisiting the concept of ‘unjustifiable hardship’ – Duty holders should be required to meaningfully consider practical solutions to accommodate people with disability before claiming unjustifiable hardship.
- Mitigating conflicts between Commonwealth and State/Territory laws – Complaints instituted under State / Territory laws should not be prevented from being instituted under Commonwealth laws unless it has been adequately dealt with in the first instance.
- Extending the definition of ‘services’ – The definition of ‘services’ should be amended to encompass certain police functions, consistent with the position under common law.
- Refreshing the elements ofdirect and indirect discrimination – The comparator test should be replaced with a detriment-based test, while the burden of proving causation should fall on the respondent to prove that unfavourable treatment was not because of a person’s disability.
We believe that these amendments will significantly benefit our clients, and people with disability across Australia. In particular, these amendments will:
- Acknowledge the unique experiences of people with intersecting identities.
- Ensure anti-discrimination laws focus on the experiences of people with disability, instead of prioritising convenience for duty holders.
- Enhance access to justice, and improve fairness and accountability within the legal process.
- Create consistency between the Disability, Sex, Race and Age Discrimination Acts.
- Strengthen disability inclusion and enhance quality of life.
- Bring the DDA into line with Australia’s international obligations.
The Australian Government’s review of the DDA offers a necessary opportunity to strengthen protections for people with disability, and close long-standing systemic gaps. We welcome these legislative changes in hopes that they create a fairer and more accessible legal framework, clarify rights and obligations, provide practical benefits, and foster a culture of equality and dignity in all areas of public life.