Volume 4, Realising the human rights of people with disability

Recommendation 4.1 Establish a Disability Rights Act

The Australian Government should commit to the enactment of a Disability Rights Act and take the necessary steps to introduce the legislation into Parliament and support its enactment. The necessary steps should include consultation with people with disability, disability representative organisations and other key stakeholders.

Victorian Government response to recommendation 4.1

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.2 Objects of the Disability Rights Act

The objects of the Disability Rights Act should include giving effect to Australia’s obligations under, and the general principles set out in, the Convention on the Rights of Persons with Disabilities.

Victorian Government response to recommendation 4.2

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.3 Principles in the Disability Rights Act

The Disability Rights Act should include a set of guiding principles designed to promote and advance the rights of people with disability in Australia. The Disability Rights Act should require that a person or entity exercising functions under the Act have regard to the principles.

Victorian Government response to recommendation 4.3

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.4 Future review of the Disability Rights Act

1. The Australian Government should ensure that a review of the Disability Rights Act is undertaken in consultation with people with disability within five years of the commencement of the Act. The review should include consideration of:
   • how the Act should be improved
   • the effectiveness of compliance mechanisms
   • the availability of appropriate remedies that meet the needs of people with disability
   • whether and how duties in the Act should be extended or applied to additional persons or entities, including private sector providers under the National Disability Insurance Scheme (NDIS).
2. Commissioners Bennett, Galbally and McEwin alternatively recommend the final point above be considered by the Australian Government as a priority and that these additional duty-holders be included from the commencement of the Act.

Victorian Government response to recommendation 4.4

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.5 The right to non-discrimination and equality before the law

The Disability Rights Act should recognise all human beings are equal in worth and dignity and every person with disability:

1. has the right to enjoy their human rights without discrimination (on the ground of disability or on a combination of protected grounds where one of those grounds is disability)
2. is equal before the law, is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

Victorian Government response to recommendation 4.5

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.6 The right to equal recognition before the law

1. The Disability Rights Act should recognise that people with disability have the right to recognition as a person before the law. Accordingly, they have the same rights as other members of the community to make decisions that affect their lives to the full extent of their ability to do so.
2. The Disability Rights Act should recognise:
   • the right of people with disability to access and use supports in making and participating in decisions that affect them, communicating their will and preferences, and developing their decision-making ability
   • the right of people with disability to access and use advocacy services in making and participating in decisions, communicating their will and preferences, and developing their decision-making ability.
3. The Disability Rights Act should define ‘supports’ broadly.
4. The Disability Rights Act should require supports for people with disability from First Nations communities and culturally and linguistically diverse backgrounds to be provided in a way that:
   • recognises that cultural, language and other differences may create barriers to providing the supports
   • addresses those barriers and the needs of those people with disability
   • is informed by consultation with their communities.
5. The definition of ‘advocacy service’ in section 7 of the Disability Services Act 1986 (Cth) should be amended to include a reference to a service that seeks to support people with disability to exercise their rights and freedoms under domestic law, including under the Disability Rights Act. This would be in addition to the existing reference to rights and freedoms under the ‘Disabilities Convention’.

Victorian Government response to recommendation 4.6

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.7 The right to live free from exploitation, violence and abuse

The Disability Rights Act should recognise:

1. people with disability have the right to live free from all forms of exploitation, violence and abuse, including the right to freedom from gender-based violence and abuse
2. people with disability have the right to accessible information and education on how to avoid, recognise and report exploitation, violence and abuse
3. people with disability who are victims of any form of exploitation, violence or abuse have the right to:
   • access protection services that promote the health, welfare, dignity and autonomy of such persons
   • access protection services that are sensitive and responsive to the different needs and experiences of people with disability, due to one or more attributes such as sex; gender identity; sexual orientation; ethnicity; language; race; religion, faith or spirituality; socio-economic status; age; neurodiversity; culture; residency status; geographic disadvantage; and experiences of trauma
   • report allegations of exploitation, violence and abuse, with protection from victimisation for making a report.

Victorian Government response to recommendation 4.7

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.8 The right to liberty and security of person

The Disability Rights Act should recognise every person with disability has the right to liberty and security of person. In particular, no person with disability may be arbitrarily arrested or detained. No person with disability may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.

Victorian Government response to recommendation 4.8

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.9 The right to equitable access to health services

The Disability Rights Act should recognise the right of people with disability to equitable access to health services. This right should include:

1. the right to the same range, quality and standard of free and affordable health care and programs as people without disability
2. the right to exercise choice about healthcare options and between available services
3. the right to access and receive quality health services appropriately adapted or specifically designed to meet the needs of the person with disability
4. the presumption of legal capacity and provision for supported decision-making
5. the right to adjustments required to access services and to receive treatment and care (to the extent that a duty-holder is required to provide adjustments in accordance with the Disability Discrimination Act 1992 (Cth))
6. the right to accessible information
7. the right of First Nations people with disability to receive health care that is culturally safe and recognises the importance of their personal connection to community and Country
8. the right to access health services that are safe, sensitive and responsive to the intersectional needs and experiences of the person with disability, noting that intersectional needs and experiences may be due to a variety of attributes, including sex; gender identity; sexual orientation; ethnicity; language; race; religion, faith or spirituality; socio-economic status; age; neurodiversity; culture; residency status; geographic disadvantage; and experiences of trauma
9. the right to voice opinions and to make complaints about health services.

Victorian Government response to recommendation 4.9

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.10 Public authority conduct

1. The Disability Rights Act should make it unlawful for a ‘public authority’ to:
   • act in a way that is incompatible with a right in the Disability Rights Act
   • fail to give proper consideration to a right where relevant to the decision being made.
2. ‘Public authority’ should be defined to include:
   • a minister of the Australian Government when exercising a statutory power or authority
   • a Commonwealth entity defined in the Public Governance, Performance and Accountability Act 2013 (Cth)
   • an official of a Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013 (Cth)
   • an individual who is employed by, or engaged in assisting, a Commonwealth entity or a staff member of a Commonwealth entity on behalf of the entity or the Commonwealth
   • a contracted service provider for the Commonwealth when providing goods or services under a Commonwealth contract, as well as an officer or employee of the contracted service provider for the contract, and someone who provides goods and services for the purposes of the contract
   • an individual who is appointed or engaged as an officer or employee of a federal court or tribunal when acting in an administrative capacity
   • other entities prescribed by regulations as public authorities for the purposes of the Disability Rights Act.
3. The Disability Rights Act should provide for a mechanism through which a non-Commonwealth entity could ask the minister to declare that the entity is subject to the obligations of a public authority under the Act and for a register of such entities to be published.

Victorian Government response to recommendation 4.10

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.11 Consultation with people with disability

1. The Disability Rights Act should require Commonwealth entities (as defined in the Public Governance, Performance and Accountability Act 2013 (Cth)), in developing and evaluating policies, laws and programs and in planning new initiatives or making major changes to services that are provided to the public, or have a direct and significant impact on the public, to consult with:
   • people with disability (including disability representative organisations), recognising the special importance of consulting and actively involving First Nations people with disability in issues that affect them
   • children and young people with disability where appropriate, or representatives of children and young people (including, as relevant, disability representative organisations, the National Children’s Commissioner, the Aboriginal and Torres Strait Islander Social Justice Commissioner or equivalents in the states and territories)
   • families, carers and supporters of people with disability (which could include their representative organisations) on issues that will or could affect families, carers and supporters in their caring role.
2. The Disability Rights Act should specify the nature of any consultation required and the consequences of a failure to consult.
3. The Disability Rights Act should provide that the consultation requirement does not give rise to a civil cause of action in any person or organisation.
4. The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) should be amended, or an accompanying legislative instrument be prepared, requiring statements of compatibility accompanying Bills and legislative instruments to provide information about relevant actions taken by Commonwealth entities to comply with the consultation requirement in the Disability Rights Act.

Victorian Government response to recommendation 4.11

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.12 Positive duty to promote disability equality and inclusion

1. The Disability Rights Act should include a requirement for a Commonwealth entity, in the exercise of its functions, to have due regard to the need to take necessary and proportionate action to advance the policy objectives of equality, inclusion and respect for the dignity of people with disability.
2. The requirement in a) should include the Commonwealth entity having due regard to the need to:
   • ensure equality of rights, opportunities, responsibilities and outcomes between people with disability and other members of the Australian community
   • act consistently with its obligations under the Disability Discrimination Act 1992 (Cth), including the duties recommended in Chapter 4 to:
     • take reasonable and proportionate measures to eliminate all forms of discrimination on the grounds of disability
     • make adjustments for people with disability so they can enjoy their human rights without discrimination, unless it would cause an unjustifiable hardship
   • address barriers that disadvantage people with disability, including barriers compounded by a person with disability’s combination of attributes and experiences
   • promote accessibility and universal design, and appropriate remedial action to existing infrastructure
   • address stigma, stereotyping, prejudice, violence, abuse, neglect and exploitation affecting people with disability
   • foster good relations between people with disability and other members of the community.

Victorian Government response to recommendation 4.12

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.13 The duty to provide an interpreter

1. The Disability Rights Act should require Commonwealth entities to provide (arrange and fund) an appropriately trained and credentialed interpreter when required by a person with disability who is accessing or using its services or engaging with its statutory functions. Interpreters may be required in Auslan, First Nations sign languages or spoken languages other than English.
2. The Disability Rights Act should provide that it is not a breach of the above duty if the relevant Commonwealth entity can demonstrate that:
   • there was no appropriately qualified interpreter available after reasonable enquiry
   • the conversation or activity that the interpreter was required for could not reasonably have been undertaken at an alternative time when an interpreter would have been available.

Victorian Government response to recommendation 4.13

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.14 The duty to provide accessible information

The Disability Rights Act should provide that a Commonwealth entity must ensure that its communications are provided in at least two formats accessible to people with disability when:

• publishing public information
• consulting or engaging with persons with disability.

Victorian Government response to recommendation 4.14

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.15 Duties supporting compliance with the Disability Rights Act

To support compliance with the Disability Rights Act, the Act should require Commonwealth entities to:

1. report annually on action they have taken to implement their duties under the Disability Rights Act
2. conduct a disability impact assessment when developing or reviewing any policy or law administered, or program or service provided, by the entity that has a direct and significant impact on the public
3. undertake a self-assessment audit for disability inclusion at least every four years
4. publish their specific and measurable objectives to further the aims of the positive duty to promote disability equality and inclusion at least every four years.

Victorian Government response to recommendation 4.15

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.16 Interpretation of the Disability Rights Act consistently with international human rights

The Disability Rights Act should require interpretation of the Act to be compatible, as far as possible, with the international human rights treaties to which Australia is a party, including the Convention on the Rights of Persons with Disabilities, and with the United Nations Declaration on the Rights of Indigenous Peoples.

Victorian Government response to recommendation 4.16

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.17 Limitations on rights

1. The Disability Rights Act should require that rights in the Act be subject only to such limitations that are reasonable and justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors (to be specified in the legislation).
2. The Disability Rights Act should make clear that the right to recognition before the law (see Recommendation 4.6), as an absolute right under international law, is not subject to any limitations.
3. This issue should be subject to consultation prior to enactment of the Disability Rights Act.

Victorian Government response to recommendation 4.17

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.18 Functions of the National Disability Commission to support compliance with the Disability Rights Act

To support compliance with the Disability Rights Act, the Act should provide the National Disability Commission (recommended in Volume 5, Governing for inclusion) with functions and powers to:

1. promote understanding and acceptance of the rights of people with disability under the Act
2. undertake research in relation to the rights and duties under the Act
3. issue guidelines on any matter relating to the Act
4. review a person or entity’s compliance with the Act (or an aspect of the Act) at that person or entity’s request
5. receive complaints or anonymous or confidential reports alleging a contravention of the Act
6. inquire into and report on any act or practice that may be inconsistent with or contrary to the Act
7. require the giving of information and the production of documents during the conduct of a formal inquiry
8. require the examination of witnesses under oath or affirmation during the conduct of a formal inquiry
9. enter into an enforceable undertaking with a person or entity in relation to compliance with the Act (engaging Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth))
10. issue a compliance notice where the National Disability Commission reasonably believes that the relevant person or entity, without reasonable excuse, has failed to comply with the Act
11. apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for enforcement of a compliance notice
12. apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for an injunction (engaging Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth)) to prevent or stop a contravention of the Act
13. intervene in any proceedings before a court or tribunal that relate to the application or interpretation of the Act.

These functions would be in addition to those recommended for the National Disability Commission in Volume 5, Governing for inclusion, and Volume 12, Beyond the Royal Commission.

The Australian Government should provide the National Disability Commission with dedicated resources to undertake these functions.

Victorian Government response to recommendation 4.18

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.19 Co-design a new complaints mechanism for people with disability

1. The National Disability Commission should co-design its complaints mechanism under the Disability Rights Act with people with disability, taking into account:
   • the national guideline for accessible and responsive complaint handling and investigative practice to be co-designed with people with disability (recommended in Volume 11, Independent oversight and complaint mechanisms)
   • processes to support referrals to police and other regulatory or oversight bodies (noting that Volume 11 recommends a ‘one-stop shop’ independent complaint reporting, referral and support mechanism in each state and territory)
   • key features for effective remedies outlined in this Final report.
2. Acts, omissions or practices that are unlawful under the Disability Rights Act (with the exception of duties supporting compliance with the Act, such as reporting obligations) should be added to the definition of ‘unlawful discrimination’ under section 3(1) of the Australian Human Rights Commission Act 1986 (Cth). This would enable the Australian Human Rights Commission to offer dispute resolution for relevant Disability Rights Act matters alongside related human rights and discrimination complaints involving a public authority.

Victorian Government response to recommendation 4.19

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.20 Enabling remedies through the courts

The Disability Rights Act should establish a standalone cause of action under which:

1. the following persons can bring a claim to the Federal Court of Australia or the Federal Circuit and Family Court of Australia that a relevant duty-holder has acted in contravention of the Disability Rights Act (other than compliance with the consultation requirement, notices of the National Disability Commission, duties supporting compliance with the Act such as reporting and self-audit obligations, and the positive duty to promote disability equality and inclusion):
   • an aggrieved person on their own behalf; an aggrieved person on behalf of themselves and others who are also aggrieved
   • two or more aggrieved persons on behalf of themselves or others who are also aggrieved (a group claim)
   • a person or disability representative organisation on behalf of one or more aggrieved persons (a representative claim)
2. where a claim is brought before a court under a) and the court finds that a person or entity has acted incompatibly with the Disability Rights Act, it can make any order it considers just and appropriate, including damages
3. provisions in relation to costs are aligned with Commonwealth discrimination law, as amended following the 2022–23 review by the Australian Government Attorney-General’s Department.

Victorian Government response to recommendation 4.20

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.21 Strengthening awareness and understanding of disability rights

1. The Disability Rights Act should provide the National Disability Commission with statutory functions to:
   • promote understanding and acceptance, and the public discussion, of the rights of people with disability under the Act
   • develop and deliver guidance materials and educational and training programs in relation to the rights and duties under the Act. Guidance should include how the intersectional experiences and identities of people with disability can affect the ways in which rights are limited or promoted in practice.
2. The National Disability Commission should co-design and co-deliver training programs and resources with people with disability, and with the Australian Human Rights Commission where relevant, to provide a complete picture of human rights protections for people with disability under the Disability Rights Act and the Disability Discrimination Act 1992 (Cth).
3. The Australian Government should provide the National Disability Commission and the Australian Human Rights Commission with dedicated resources to undertake these roles.

Victorian Government response to recommendation 4.21

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.22 Strengthening disability rights protection in state and territory laws

1. States and territories should enact legislation complementary or equivalent to the Australian Disability Rights Act, taking into account their own legal frameworks.
2. The Disability Rights Act should provide that the Act is not intended to exclude or limit the operation of a state or territory law that furthers the objectives of the Convention on the Rights of Persons with Disabilities and is capable of operating concurrently with the Act.

Victorian Government response to recommendation 4.22

We will consider this recommendation further.

Our response will depend on whether the Australian Government enacts a federal Disability Rights Act.

Victoria already has legislative protections that might be covered by such an Act. These include rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) and protections against discrimination on the basis of disability under the Equal Opportunity Act 2010 (Vic).

We will need to consider how our existing legislation will work with the proposed Act.

This will include any recommendations made by the Parliamentary Joint Committee on Human Rights in its Inquiry into Australia’s Human Rights Framework.

Joint response to recommendation 4.22

Subject to further consideration

The Australian Government and state and territory governments are committed to working with people with disability, their families, carers, supporters and representative organisations to consider the most appropriate and impactful ways to strengthen disability rights protections.

This recommendation is being considered alongside the findings and recommendations of the Parliamentary Joint Committee on Human Rights Inquiry into Australia’s Human Rights Framework.

Recommendation 4.23 Burden of proof in direct discrimination

The Disability Discrimination Act 1992 (Cth) should be amended by inserting new subsections 5(1) and 5(1A). The subsections would read as follows:

1. For the purposes of this Act, a person (the alleged discriminator) directly discriminates against another person (the aggrieved person), if the person treats, or proposes to treat, the aggrieved person unfavourably on the ground of the aggrieved person’s disability.
   1. For the purposes of subsection (1), an alleged discriminator who has treated, or proposes to treat, the aggrieved person unfavourably bears the burden of proving that the treatment or proposed treatment was not on the ground of the aggrieved person’s disability.

Victorian Government response to recommendation 4.23

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.24 Reforming indirect discrimination

The Disability Discrimination Act 1992 (Cth) should be amended by inserting a new subsection 6(3) to substitute existing subsections 6(3) and (4) as follows:

6(3) Subsection (1) or (2) does not apply if avoiding the discrimination would impose an unjustifiable hardship on the alleged discriminator.

Victorian Government response to recommendation 4.24

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.25 Adjustments

The Disability Discrimination Act 1992 (Cth) should be amended by replacing all references to ‘reasonable adjustments’ with ‘adjustments’.

Victorian Government response to recommendation 4.25

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.26 Standalone duty to make adjustments

The Disability Discrimination Act 1992 (Cth) should be amended to include the following provision:

Duty to make adjustments

It is unlawful for a person to fail or refuse to make an adjustment for:

1. a person with a disability; or
2. a group of persons with disability

unless making the adjustment would impose an unjustifiable hardship on the person.

Victorian Government response to recommendation 4.26

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.27 Positive duty to eliminate disability discrimination

The Disability Discrimination Act 1992 (Cth) should be amended to introduce a positive duty on all duty-holders under the Act to eliminate disability discrimination, harassment and victimisation, based on the December 2022 amendments to the Sex Discrimination Act 1984 (Cth):

Duty to eliminate discrimination on the ground of disability

1. A person must take reasonable and proportionate measures to eliminate all forms of discrimination on the ground of disability.
2. In determining whether a measure is reasonable and proportionate the following factors must be considered—
   1. the size of the person’s business or operations;
   2. the nature and circumstances of the person’s business or operations;
   3. the person’s resources;
   4. the person’s business, risk management plans and operational priorities;
   5. the practicability and the cost of the measures;
   6. whether the person has a disability action plan;
   7. nature and extent of the person’s consultation with any person with disability concerned; and
   8. all other relevant facts and circumstances.

Other duties not limited or otherwise affected

3. This section does not limit, or otherwise affect, a duty that a duty-holder has under:
   1. the Work Health and Safety Act 2011 (Cth); or
   2. a law of a State or Territory that deals with work health and safety.

Victorian Government response to recommendation 4.27

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.28 Systemic discrimination

1. Division 4A (ss 35A–35K) of the Australian Human Rights Commission Act 1986 (Cth) should be amended by inserting the words ‘or disability discrimination’ after ‘sex discrimination’ where these words appear.
2. A reference to ‘disability discrimination’ means any conduct that is unlawful under the Disability Discrimination Act 1992 (Cth).

Victorian Government response to recommendation 4.28

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.29 Offensive behaviour

The Disability Discrimination Act 1992 (Cth) should be amended by inserting a new provision:

Section 39A Offensive behaviour because of disability

1. It is unlawful for a person (the first person) to do an act, otherwise than in private, if:
   1. the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
   2. the act is done because of the disability of the other person or because some or all of the people in the group have or are perceived by the first person to have a disability.
2. For the purposes of subsection (1), an act is taken not to be done in private if it:
   1. causes words, sounds, images or writing to be communicated to the public; or
   2. is done in a public place; or
   3. is done in the sight or hearing of people who are in a public place.
3. In this section:
   public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

Victorian Government response to recommendation 4.29

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.30 Vilification because of disability

1. The Disability Discrimination Act 1992 (Cth) should be amended by inserting a new provision as follows:

Section 39C Vilification because of disability

1. It is unlawful for a person (the first person) to do an act otherwise than in private, if:
   1. the act involves threats by the first person to perpetrate or encourage violence or serious abuse directed at another person or group of people;
   2. the act is reasonably likely, in all the circumstances, to incite hatred towards another person or a group of people; and
   3. the act is done because of the disability of the other person or because some or all of the people in the group have or are perceived by the first person to have a disability.

2. States and territories that already have legislation imposing criminal penalties for vilification of people on grounds that do not include disability should extend the legislation to vilification of people on the ground of disability.

Victorian Government response to recommendation 4.30

We accept this recommendation in full.

We are already reforming vilification protections in Victoria. We will introduce new legislation in late 2024.

We note there is no joint response for recommendation 4.30. This is because the Standing Council of Attorneys-General decided that jurisdictions will respond individually.

However, this recommendation is still considered a joint recommendation due to the impact on all states and territories and the Commonwealth.

Recommendation 4.31 Disability discrimination and migration law

3. The Australian Government should initiate a review of the operation of section 52 of the Disability Discrimination Act 1992 (Cth), insofar as it authorises discrimination against people with disability seeking to enter Australia temporarily or permanently. The review should consider changes to the legislation and migration practices to eliminate or minimise the discrimination.
4. The review should be conducted with particular reference to the rights recognised by the Convention on the Rights of Persons with Disabilities and the Concluding observations on the combined second and third periodic reports of Australia made by the United Nations Committee on the Rights of Persons with Disabilities.

Victorian Government response to recommendation 4.31

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.32 Unjustifiable hardship

Section 11 of the Disability Discrimination Act 1992 (Cth) should be amended by inserting the new subsections 11(1)(aa), 11(1)(ab) and 11(1A) as follows:

11 Unjustifiable hardship

1. For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
   1. the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
      1. the nature and extent of the first person’s consultations with any person with disability concerned;
      2. the first person’s consideration of all available and appropriate alternative measures or actions;
   2. the effect of the disability of any person concerned;
   3. the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
   4. the availability of financial and other assistance to the first person;
   5. any relevant action plans given to the Commission under section 64.

Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.

1. A) The person relying on unjustifiable hardship must:
   2. create and retain all documents recording the person’s consideration (if any) of each of the factors in subsection (1); and
   3. provide reasons to the person concerned, if so requested, for contending that unjustifiable hardship existed at the time of the alleged unlawful discrimination.
2. For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

Victorian Government response to recommendation 4.32

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.33 Reference to the Convention on the Rights of Persons with Disabilities

The Disability Discrimination Act 1992 (Cth) should be amended to insert a new subsection 3(d) as follows:

4. to give effect to Australia’s obligations under the Disabilities Convention.

Victorian Government response to recommendation 4.33

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 4.34 Interpretation of the Disability Discrimination Act 1992 (Cth)

The Disability Discrimination Act 1992 (Cth) should be amended by inserting a new subsection 4(3):

3. This Act must be interpreted in a way that is beneficial to a person or persons with disability, to the extent it is possible to do so consistently with—
   1. the objects of this Act
   2. the Convention
   3. the Covenant on Civil and Political Rights
   4. the Disabilities Convention
   5. the International Covenant on Economic, Social and Cultural Rights.

Victorian Government response to recommendation 4.34

We note this recommendation.

This recommendation is not within our area of responsibility.