(Cth) Impose a Positive Duty to Prevent Disability Discrimination

Paloma Hawkins, Sara Abu Asbeh & Michelle Saffin
5 days ago
7 min read

Author: Paloma Hawkins, Sara Abu Asbeh & Michelle Saffin | Publish date: 19/12/2025

P: There is no positive duty to prevent disability discrimination in schools, businesses, workplaces, organisations and services.
S: The Minister for Disability should amend the Disability Discrimination Act 1992 (Cth) to impose a positive duty on schools, businesses, workplaces, organisations and services, as modelled on Part IIA of the Sex Discrimination Act 1984 (Cth).

Problem Identification:

Part 2 of the Disability Discrimination Act 1992 (Cth) (DDA) stipulates that discrimination on the basis of disability is ‘unlawful’. However, it does not establish a proactive duty to prevent it.

According to Rosemary Kayess, the Disability Discrimination Commissioner for the Australian Human Rights Commission (AHRC), this means that ‘the Act is reactive rather than preventative.’ She therefore argued that ‘employers, schools and service providers only act when a complaint is made or when ordered by a court.’ This is known to place a burden on people with disability who have to ‘prove their disability caused the discrimination, which is often impractical and discourages complaints.’

Context:

A positive duty refers to taking ‘reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct.’ The AHRC clarified that reasonable and proportionate measures ‘will depend on the size and nature of the organisation’ and ‘the resources available.’

Kayess noted that the current system relies on complaints of discrimination from victims to initiate change. The AHRC reported that nearly half (46%) of complaints in 2022-23 accounted for disability discrimination.

The Australian Disability Network (ADN) reported that ‘in Australia, over 4.4 million people have lived experience of disability’. They further noted that ‘while 90% of organisations claim to value diversity, only 4% prioritise disability.'

Arguments:

According to People With Disability Australia (PWDA), the current complaints-based system ‘is often burdensome and traumatic’ for victims of disability discrimination. Personal testimonies from PWDA’s report stated: ‘I have limited energy and I need it to live for the good quality moments of life … I do not want to relive the traumatic and horrible experiences’. Another noted, ‘the level of abuse and bullying increases tenfold when you make a complaint.’ More broadly, the complaints-based system was described as ‘exhausting and retraumatising’ as well as ‘not designed for people with intellectual disability’.

PWDA has argued that the current system discourages Australians with disability from flagging discriminatory behaviour. Their report stated that ‘the opportunity to complain is cut off at the first instance when internal complaints are met by reprisal or inaction’. PWDA quoted lived experiences of the complaints-based system: ‘If I ever pointed out the unsuitable set-up for people with disability … the person who ‘listened’ was useless … to act on it or change anything.’ They further outlined that this inaction caused 68% of their survey respondents to forgo documenting discriminatory conduct, as ‘they did not think it would change anything.’ Therefore, PWDA argued that such a system is ‘fundamentally incapable of delivering justice’.

PWDA further argued that the process ‘compound[s] effects for people with disability who already deal with many barriers’. According to the National Legal Aid (NLA), the current system results in people with disabilities ‘carry[ing] the weight of systemic problems.’

PWDA noted that some businesses ‘may be concerned about the resources involved in implementing a positive duty.’ However, they countered that ‘businesses have much to gain from eliminating discrimination,’ as they ‘retain staff with disability and boost their productivity.’ The ADN stated that a positive duty can be implemented ‘with little to no extra cost to the employer’. They further emphasised that ‘businesses are losing out when they leave disability inclusion off the agenda.’

Advice/Solution Identification:

The NLA, the AHRC, PWDA, the Australian Nursing and Midwifery Federation (ANMF), and the 2023 Disability Royal Commission have all called to impose a positive duty to prevent disability discrimination. According to the Disability Royal Commission, a positive duty ‘means shifting the focus from a reactive model to one of preventi[on]’ which could ‘eliminate all forms of discrimination, including harassment and victimisation, on the ground of disability.’ The ANMF emphasised that imposing a positive duty could ‘provide for an environment of systemic monitoring, reporting and action, with a focus on more than updating policies and procedures.’

Precedent:

There is domestic and international precedent for establishing positive duty. Domestically, in the ACT and VIC, a positive duty has been established to provide reasonable adjustments for people with disability to prevent discrimination. Federally, a positive duty was included in December 2022 under the Sex Discrimination Act 1984 (Cth). Internationally, in the UK, public bodies are required to take proactive steps to eliminate discrimination and advance equality.

Public Support:

News Coverage:

The Canberra Times - “Impairment is part of human diversity. Society response to that is what disables us.” The opinion piece outlined how Australians living with disability are harmed by lack of positive duty. By: Rosemary Kayess | Wed 3 Dec 2025. Read the piece here.
Disability Support Guide - “Major review of Disability Discrimination Act promises long-overdue reform.” The article presented the Disability Discrimination Act 1984 (Cth) as outdated and in need of a positive duty reform. By: Disability Support Guide | 2025. Read the article here.
Diversity Council Australia - “Implementing positive duties.” The article clarified what positive duty in the Sex Discrimination Act 1984 (Cth) would look like in practice, especially in terms of the ‘reasonable and proportionate’ requirement for organisations. By: Diversity Council Australia | 2025. Read the article here.
The Conversation - “Explainer: what is a ‘positive duty’ to prevent workplace sexual harassment and why is it so important?”. The article explained the positive duty in regards to preventing sexual harassment. By: Sue Williamson | Wed 8 Sept 2021. Read the explainer here.

Where to go to learn more:

PWDA’s report (2025) - Their October report detailed why positive duty would benefit Australians living with disability and quoted their survey respondents’ lived experience. Read the full report here.
The Disability Royal Commission’s Final Report Executive Summary (2023) - The September report outlined their recommendations for the Disability Discrimination Act 1992 (Cth), including a positive duty, as modelled on Part IIA of the Sex Discrimination Act 1984 (Cth). Read the full report here.
ANMF’s review (2025) - Their October review emphasised a positive duty’s impact on health and aged care sectors and referenced precedent. Read the full submission here.
Attorney-General’s Department Review (2025) - The Review provided a clear summary of a positive duty, including a hypothetical example of how a positive duty could be upheld. Read the full report here.
Disability Discrimination Act 1992 (Cth) - Read the full Act here.
Sex Discrimination Act 1984 (Cth) - Read the full Act here.

Human Perspective:

Emma is blind and lives independently with her guide dog, Beau. After securing a job in the public sector, she encountered persistent accessibility barriers that undermined her ability to work effectively. Without consultation, Emma was relocated to an office that was only accessible by steep stairs, which she and Beau found difficult to navigate. Her manager also failed to provide meaningful work and instead assigned Emma tasks that relied heavily on inaccessible visual materials. With low vision, these tasks took an extended period of time to complete. Emma reported that other staff were aware of the situation and acknowledged that the work was inappropriate, yet took no action to address it. She raised her concerns with human resources and proposed alternative roles that better aligned with her skills and safety needs. However, human resources labelled her adjustments ‘too complicated’, so no changes to her role or store location were made. The cumulative impact of inaccessible working conditions and inadequate support led Emma to take leave, with her confidence and professional reputation severely damaged. Emma later reported that this discriminatory experience left her unable to work for the following two years, as she no longer felt safe.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement:

N/A

Support

If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com.

Reference list:

Attorney General’s Department. (2025). Disability Discrimination Act Review: Summary Issues Paper. Australian Government. https://consultations.ag.gov.au/rights-and-protections/dda-community-survey/user_uploads/dda-review-summary-issues-paper.pdf

Australian Disability Network. (2024). Business benefits of employing people with disability. https://australiandisabilitynetwork.org.au/join-us/why-hire-people-with-a-disability/benefits#_ftn2:~:text=The%20World%20Health,.

Australian Human Rights Commission. (2023, October). Factsheet Series: Positive Duty. https://humanrights.gov.au/__data/assets/file/0023/47066/2310_fs_steps_to_meet_the_positive_duty_v2.pdf

Australian Human Rights Commission. (n.d.). 2022-2023 Complaint statistics. https://humanrights.gov.au/__data/assets/file/0027/56385/Ar_2022-23_complaint_stats_tables.pdf#page=2

Australian Nursing and Midwifery Federation. (2025, October 24). Review of the Disability Discrimination Act 1992 (Cth). https://anmf.org.au/media/v3tjy0cy/2025-10-24-anmf-submission-disability-discrimination-act-review.pdf

Chartered Institute of Personnel and Development. (2025, October 23). Disability discrimination: UK employment law. https://www.cipd.org/uk/knowledge/employment-law/disability-discrimination/#:~:text=Disability%20discrimination%20protection,or%20trivial%20disadvantage

Disability Discrimination Act 1992 (Cth). https://www.legislation.gov.au/C2004A04426/2018-04-12/text

Disability Support Guide. (2025). Major review of Disability Discrimination Act promises long-overdue reform. Disability Support Guide. https://www.disabilitysupportguide.com.au/talking-disability/major-review-of-disability-discrimination-act-promises-long-overdue-reform?utm_

Discrimination Act 1991 (ACT). https://www.legislation.act.gov.au/a/1991-81

Diversity Council Australia. (2025). Implementing Positive Duties. Diversity Council Australia. https://www.dca.org.au/resources/di-planning/compliance/implementing-positive-duties

Equal Opportunity Act 2010 (Vic). https://www.legislation.vic.gov.au/in-force/acts/equal-opportunity-act-2010/031

Kayess, R. (2025, December 3). Impairment is part of human diversity. Society response to that is what disables us. The Canberra Times. https://www.canberratimes.com.au/story/9124439/opinion-australias-disability-discrimination-laws-need-reform/

Kayess, R. (2025, December 3). Impairment is part of human diversity. Society response to that is what disables. Australian Human Rights Commission. https://humanrights.gov.au/about-us/media-centre/opinion-pieces/disability-rights/impairment-is-part-of-human-diversity.-society-response-to-that-is-what-disables-us#:~:text=the%20Act%20is%20reactive%20rather%20than%20preventative

National Legal Aid. (2025, October 14). Network for Disability Law Reform joint statement: Time for a Stronger Disability Discrimination Act. National Legal Aid. https://nationallegalaid.org.au/news/dda-reforms#:~:text=carry%20the%20weight%20of%20systemic%20problems

People with Disability Australia. (2025, October 17). ‘Fight for Me Instead of Making Me Fight’ – Submission to the Attorney-General’s Department’s Review of the Disability Discrimination Act 1992 (Cth) Review. https://pwd.org.au/wp-content/uploads/2025/11/PWDA.SB_.DDA_.Review_Submission_Final_17Oct25.pdf#page=16

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2023). Executive Summary, Our vision for an inclusive Australia and Recommendations. https://disability.royalcommission.gov.au/system/files/2023-11/Final%20report%20-%20Executive%20Summary%2C%20Our%20vision%20for%20an%20inclusive%20Australia%20and%20Recommendations.pdf#page=84

Sex Discrimination Act 1984 (Cth). https://www.legislation.gov.au/C2004A02868/latest/text

Williamson, S. (2021, September 8). Explainer: what is a ‘positive duty’ to prevent workplace sexual harassment and why is it so important?. The Conversation. https://theconversation.com/explainer-what-is-a-positive-duty-to-prevent-workplace-sexual-harassment-and-why-is-it-so-important-167430