The Australian Government is undertaking a comprehensive review of the Disability Discrimination Act 1992 (DDA) following recommendations from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.
The Attorney-General’s Department has released an Issues Paper outlining significant proposed changes to strengthen protections for people with disability and clarify obligations for employers and service providers. You can read the full issues paper at the Attorney General’s Department website. A summary paper, video and Easy Read versions are also available on this website.
The Disability Discrimination Act review addresses several critical areas that directly impact employment practices and employer obligations. As Australian Disability Network represents employer interests in disability employment, the following six themes are particularly relevant to our members.
Six key employment related themes
1. Reasonable Adjustments/Accommodations (Part 3, pages 42-46)
Current situation: The Act currently requires employers to provide “reasonable adjustments” unless it would impose “unjustifiable hardship.” There is ongoing discussion about what “reasonable” means, with some employers treating it as an additional test of whether adjustments are sensible or appropriate, rather than understanding that all adjustments are required up to the point of unjustifiable hardship.
Proposed changes: Remove the word “reasonable” from “reasonable adjustments” and create a standalone duty making it explicitly unlawful for employers to fail or refuse to make adjustments unless they cause unjustifiable hardship. This aims to clarify the obligations following the Sklavos court decision, which created challenges for employees seeking to establish discrimination when adjustments were refused.
Why this matters to employers: This represents a shift in how workplace adjustments are understood and implemented. Employers would need to reassess their current practices, as the primary consideration would be whether adjustments cause unjustifiable hardship. This could change legal obligations while providing clearer guidance on what’s required.
2. Unjustifiable Hardship Assessment (Part 3, pages 46-48)
Current situation: Employers can refuse adjustments if they would cause “unjustifiable hardship,” considering factors like cost, financial circumstances, and impact on others. Currently, there is no requirement to consult with the employee or document decision-making processes, which can lead to inconsistent decisions.
Proposed changes: Add mandatory considerations including how much consultation occurred with the person with disability, what alternative options were explored to reduce hardship, and require employers to document their reasoning. Some proposals also suggest a balancing test weighing benefits against costs and detriments.
Why this matters to employers: This would introduce more structured and documented decision-making processes when refusing adjustments. Employers would need to demonstrate consultation and consideration of alternatives, not only cost concerns. This may require updates to HR processes and decision-making frameworks, and could provide clearer legal guidance when decisions are challenged.
3. Inherent Requirements of Work (Part 3, pages 49-52)
Current situation: Employers can refuse to hire someone with disability if they cannot perform the “inherent requirements” of a job, even with adjustments. Currently, there is limited guidance on what constitutes inherent requirements, no requirement to consult with the candidate, and employers may make assumptions about capabilities without detailed assessment.
Proposed changes: Add two mandatory factors that employers must consider before determining someone cannot perform inherent requirements: the nature and extent of adjustments that could be made, and the extent of consultation with the person with disability. This would require dialogue before employment decisions.
Why this matters to employers: This could change recruitment processes and job design practices. Employers would need to engage in consultation with candidates about potential adjustments before making hiring decisions. This may require additional time and resources in recruitment and could lead to more informed decisions and clearer compliance processes.
4. Positive Duty for Employers (Part 2, pages 36-41)
Current situation: The Act currently operates on a complaints-based model where individuals must experience discrimination and then seek redress through the Australian Human Rights Commission or courts. There is currently no legal obligation for employers to proactively prevent discrimination.
Proposed changes: Introduce a positive duty similar to recent sex discrimination law changes, requiring employers to take reasonable and proportionate measures to eliminate disability discrimination as far as possible. The Australian Human Rights Commission would have enforcement powers including compliance notices and enforceable undertakings, meaning they could act without individual complaints.
Why this matters to employers: This represents a significant change, shifting from reactive to proactive compliance. Employers would need to continuously assess and improve their disability inclusion practices, with the regulator able to take action independently. Requirements would vary based on organisation size and resources, and could include policy development, training, data collection, and regular review processes.
5. Simplified Discrimination Definitions (Part 1, pages 26-33)
Current situation: Current discrimination definitions are complex and technical, requiring complainants to prove less favourable treatment compared to a hypothetical person without disability, and demonstrate that disability was the reason for treatment. This creates barriers for people seeking protection and can make it challenging for employers to understand their obligations.
Proposed changes: For direct discrimination, remove the comparison requirement and focus on unfavourable treatment, plus shift the burden of proof so employers must prove their actions weren’t because of disability. For indirect discrimination, remove the “reasonableness” element that currently provides an additional defence.
Why this matters to employers: These changes could make it easier for employees to bring discrimination complaints while providing clearer guidance on what constitutes unlawful behaviour. The burden of proof shift means employers may need to maintain better records of decision-making rationale. Clearer definitions could also help employers better understand and comply with their obligations.
6. Disability Action Plans (Part 6, pages 79-81)
Current situation: Disability action plans are voluntary documents that organisations can develop to set out strategies for addressing practices that might result in discrimination and promoting disability rights. Over 650 organisations have submitted plans to the Australian Human Rights Commission’s public register. Currently, there are no minimum requirements for what plans must contain, no assessment of plan quality, no requirement for updates or evaluation, and limited enforcement mechanisms. Plans are considered during complaint processes when assessing unjustifiable hardship claims.
Proposed changes: The review considers several improvements including allowing the AHRC to provide advice on plan development, enabling the AHRC to set minimum requirements and reject inadequate plans, introducing set timeframes for plan validity requiring regular updates, mandating evaluation reports when submitting subsequent plans, and potentially requiring organisations to report on their compliance with relevant Disability Standards within their action plans.
Why this matters to employers: Action plans currently offer a way to demonstrate proactive disability inclusion efforts, which can provide protection during complaint processes. A lack of standards means variation in plan quality and effectiveness. Changes could make action plans more useful business planning tools while creating new compliance obligations. If minimum requirements are introduced, organisations may face additional administrative responsibilities but could gain clearer guidance on effective inclusion strategies. The proposed changes could shift action plans from optional exercises to meaningful business planning documents that drive inclusion outcomes.
These themes collectively represent a potential shift towards more proactive, consultative, and documented approaches to disability inclusion in employment. Understanding member perspectives on these changes will help AusDN advocate for balanced reforms that promote inclusion while considering practical implementation challenges for employers.
Additional Areas for Consideration
Talent Development and Retention
Reference: Throughout the document, particularly Part 1 and 3 regarding barriers to full participation
Context: While the review focuses heavily on initial employment discrimination, it acknowledges that discrimination affects all aspects of employment, including career development and advancement. The proposed changes to definitions and duties would apply to all employment decisions, not just hiring. The positive duty would require ongoing attention to eliminating discrimination in all employment practices.
Why this matters to employers: The proposed changes would extend beyond hiring to cover promotion, training opportunities, performance management, and career development decisions. Employers would need to ensure their talent management systems don’t inadvertently discriminate and may need to proactively address barriers to advancement. This could involve reviewing promotion criteria, training accessibility, leadership development programs, and succession planning processes to ensure equal opportunities for career progression.
Resource and Size Considerations
Reference: Part 2 and throughout – acknowledging different impacts on different sized organisations (pages 39-40)
Context: The review acknowledges that any new duties must consider the size and resources of different organisations. The proposed positive duty would require “reasonable and proportionate measures” taking into account the size of the business, available resources, practicability and costs. This means smaller organisations would have different obligations than large corporations, though specific guidance on what this means in practice is still being developed.
Why this matters to employers: The scalability of new obligations is important for business sustainability and practical implementation. Small businesses may have different HR resources or legal expertise compared to large corporations, which have different capacity and risk profiles. Understanding how requirements would be tailored to organisational size affects budgeting, resource allocation, and compliance planning. Employers would need clarity on what “reasonable and proportionate” means for their specific context to manage compliance costs and requirements effectively.
Managing Complex Inclusion Needs
Reference: Part 1 – Addressing intersectionality (pages 24-26)
Context: The review discusses how people may experience discrimination based on multiple characteristics (intersectionality) – for example, disability combined with gender, race, or age. While the Disability Discrimination Act currently allows complaints where disability is one of multiple reasons for discrimination, the courts may face challenges with complex intersectional cases. The review considers whether changes are needed to better protect people with multiple identity characteristics.
Why this matters to employers: Many employees have multiple diversity characteristics that can create complex inclusion considerations. Proposed changes to allow explicit intersectional complaints could increase legal complexity for employers who may face claims involving multiple protected attributes. This requires understanding of how different forms of discrimination interact, comprehensive policies and training, and potentially more nuanced complaint resolution processes. However, it could also provide clearer guidance on addressing overlapping inclusion needs.
Industry-Specific Implementation
Reference: Various sections acknowledging sector differences, particularly Part 3 on exclusionary discipline in education (pages 53-58)
Context: The review acknowledges that different sectors face different challenges in implementing disability inclusion. While much focus is on employment generally, specific sectors like education have particular issues addressed. The proposed changes would apply across all industries, but implementation may need to consider sector-specific factors, workplace health and safety requirements, and industry standards.
Why this matters to employers: Different industries have unique operational requirements, safety considerations, regulatory frameworks, and customer interaction models that affect how disability inclusion can be implemented. Universal legislative changes may create practical challenges in some sectors while being easily implemented in others. Understanding industry-specific barriers and opportunities helps ensure that new requirements are workable across different business contexts and that sector-specific guidance can be developed where needed.
Future Workforce Planning
Reference: Part 7 – Further options for reform and future-proofing (pages 85-86)
Context: The review considers how to ensure the Disability Discrimination Act remains relevant as society and technology change. It notes the significant changes since the Act was introduced in 1992, including technological advances that have changed how people work and participate in society. The review seeks input on how to future-proof the legislation against continuing social and technological change.
Why this matters to employers: Technological and social changes are transforming work practices, from remote work and AI integration to new forms of employment relationships and workplace technologies. Legislation needs to remain relevant across these changes while providing stable guidance for long-term planning. Employers need frameworks that can adapt to emerging technologies, changing workforce demographics, and evolving understanding of disability and inclusion, while providing consistent guidance for compliance planning.
Premises Access and Building Standards
Reference: Part 6 – Disability Standards (pages 81-84)
Current situation: The Disability (Access to Premises – Buildings) Standards 2010 require certain new buildings and major renovations to meet accessibility requirements, though primarily apply to new construction rather than existing buildings. Enforcement relies mainly on individual complaints rather than systematic monitoring. While the review doesn’t propose major changes to the standards themselves (they’re reviewed separately every 5 years), it considers improvements including potential compliance reporting requirements, better enforcement through positive duty provisions, and encouraging accessibility reporting through disability action plans.
Why this matters to employers: Workplace accessibility directly affects employers’ ability to recruit, retain and accommodate employees with disability. While new buildings must meet accessibility standards, many employers operate from older buildings that may not be fully accessible, which could affect reasonable adjustment obligations and recruitment capabilities. If compliance reporting requirements are introduced, employers may need to assess and document building accessibility. The intersection between building standards and employment obligations could become clearer, potentially affecting what constitutes reasonable adjustments versus unjustifiable hardship when workplace modifications are needed.
How to contribute to our response
We are planning to submit a response, representing our 450+ member employers, and we are seeking your input to inform our submission.
We will aim to advocate for realistic implementation, clear guidance, and balanced approaches that strengthen disability rights while recognising operational realities.
All contributions will be deidentified in our final submission.
Please complete this quick survey to express your interest in participating.