Disability Discrimination Act 1992 Review: Submission from Inclusive Educators Australia | External submission

Submission to the Australian Government

Attorney-General’s Department

Disability Discrimination Act 1992 Review

Inclusive Educators Australia

23 October 2025

Website: https://inclusiveeducators.org.au/

1. Background

1.1 Inclusive Educators Australia

Inclusive Educators Australia (IEA) brings together Australian education professionals who are focused on providing an inclusive education for all students. We believe that every student, regardless of background or ability, has the right to quality inclusive education in a regular education environment, alongside same-age peers, accessing the core curriculum and participating fully as valued members of their school community.

IEA has over 9000 members across our organisation and affiliate networks, which comprise principals, teachers, education assistants, allied professionals working in schools and system administrators. These members work in public, Catholic and Independent school systems.

IEA recognises the professional knowledge and skills of inclusive educators and promotes and supports their valuable leadership across schools and education systems. IEA facilitates access to professional learning opportunities, evidence- informed resources and collaborative networks to enhance inclusive education practices.

IEA is focused on celebrating and advancing inclusive education reform efforts and is committed to building the confidence and capability of the education workforce to ensure scalable and sustainable change across classrooms, preschools, schools and the education system.

1.2 Inclusive education

IEA recognises that students with disability have a fundamental human right to inclusive education under the Convention on the Rights of Persons with Disabilities (CRPD). IEA’s understanding of inclusive education is informed by Article 24 of the CRPD and General Comment No.4 (Right to Inclusive Education) released by the Committee on the Rights of Persons with Disabilities (CRPD Committee) in 2016.

General Comment No.4 defines inclusion as:

‘a process of systemic reform embodying changes and modifications in content, teaching methods, approaches, structures and strategies in education to overcome barriers with a vision serving to provide all students of the relevant age range with an equitable and participatory learning experience and environment that best corresponds to their requirements and preferences. Placing students with disabilities within mainstream classes without accompanying structural changes to, for example, organisation, curriculum and teaching and learning strategies, does not constitute inclusion.’ 1

The CRPD Committee goes on to say that ensuring the right to inclusive education entails:

‘a transformation in culture, policy and practice in all formal and informal educational environments to accommodate the differing requirements and identities of individual students, together with a commitment to remove the barriers that impede that possibility’
‘strengthening the capacity of the education system to reach out to all learners. It focuses on the full and effective participation, accessibility, attendance and achievement of all students, especially those who, for different reasons, are excluded or at risk of being marginalized’
‘access to and progress in high-quality formal and informal education without discrimination’
‘an in-depth transformation of education systems in legislation, policy and the mechanisms for financing, administration, design, delivery and monitoring of education.’ 2

Inclusive education requires an ongoing commitment to an improvement focus and a high level of frequency and fidelity of quality teaching and learning practices across the whole-school. As a result, inclusive education is not a destination. There will always be a need to build capability and to improve systems and processes.

Importantly, General Comment No.4 distinguishes inclusion from:

Exclusion, which ‘occurs when students are directly or indirectly prevented from or denied access to education in any form.’ 3
Segregation, which ‘occurs when the education of students with disabilities is provided in separate environments designed or used to respond to a particular or various impairments, in isolation from students without disabilities.’ 4
Integration, which ‘is a process of placing persons with disabilities in existing mainstream educational institutions, as long as the former can adjust to the standardized requirements of such institutions’. 5

IEA therefore considers that inclusive education, as an educational practice, means that all students with disability:

learn in a regular education environment (that has been sufficiently transformed to be accommodate all learners), alongside their same-age peers
access the core curriculum, with appropriate adjustments and supports
fully and effectively participate in their school community as valued members.

We have experienced firsthand that inclusive education leads to the best academic, social and emotional and post-school outcomes for students with disability. These positive outcomes are experienced by all students with disability, including those with complex learning profiles. This strongly supported by a wealth of research evidence that consistently highlights inclusive education as a beneficial model of education for all students. 6

We have also witnessed the transformative impact of inclusive education on students without disability, improving not only their educational outcomes but also shaping their beliefs and attitudes. Inclusive education fosters greater acceptance of diverse characteristics, identities and learning profiles. This is again supported by a wealth of academic evidence. 7

1.2.1 Segregated education

IEA considers that ‘special schools’, or ‘special’ units or classrooms within mainstream preschools or schools, to be segregated education and incompatible with inclusive education. We consider the educational experiences and outcomes of segregated education settings for students with disability to be unacceptably poor and amounts to educational neglect. We are not aware of any research evidence that demonstrates that segregated education provision improves long term outcomes for students with disability. 8

Rather, a 2020 study that tracked the outcomes of ‘matched pairs’ of students, found that students accessing inclusive education had significantly more positive outcomes than their matched student. The quasi-experimental study focused on 15 pairs of students with complex learning profiles, matched across 12 characteristics. One child in each pair was included in general education for 80% or more during their day. The other child in the pair received their education in a separate special education class. 9 The authors concluded that:

‘Progress outcomes for communication, literacy, and numeracy skills from the first IEP in the district to the most current IEP were highly significant for the students served in general education versus their counterparts in separate classes. In addition, levels of engaged learning, social interactions, and involvement in typical curricular activities were significantly higher during the school day for students served in general education classes.’ 10

In addition to being incompatible with inclusive education, segregation in education also constitutes a form of discrimination. The CRPD Committee has confirmed that segregated education models violate Articles 5(2) and 24(1)(a) of the CRPD, and that a failure to provide inclusive and quality education in mainstream settings is itself discriminatory. 11 The Committee explained that this is the case because segregated education systems are based on, and perpetuate, the assumption that some learners are “unsuitable” for regular education. 12

1.2.2 Inclusive education in practice

IEA members have significant experience and expertise in delivering inclusive education and transforming schools to be fully inclusive of all students. Our experience demonstrates that inclusive education is practicable and achievable

across Australia, at all stages of education and across public, Catholic and Independent systems.

Our experience and expertise show that the following elements are critical to the successful realisation of inclusive education:

Shared understanding amongst all stakeholders of inclusive education, including its guiding philosophy, fundamental concepts, frameworks and practices
System-level support from state/territory and regional stakeholders and Departments of Education
School leadership and commitment from principals and broader leadership teams
Strategic planning to develop a robust plan for achieving inclusive education in the school’s unique context
Professional development opportunities for teachers and support staff to become more confident in providing inclusive education, with sufficient time allocated to enable this
Community education of the broader school community about inclusive education and the benefits for all students
Family collaboration with parents/carers and supporters in planning and decision-making
Inclusive culture that actively fosters inclusive attitudes and behaviours and building a school culture based on respect for diversity
Empowering the leadership and voice of students with disability
Ongoing, continuous review and monitoring of inclusive education implementation.

2. Overview

Inclusive Educators Australia welcomes the Australian Government’s commitment to reviewing the Disability Discrimination Act 1992 (Cth) (DDA) and the opportunity to strengthen protections for people with disability.

This review provides an important opportunity to ensure that the DDA not only prohibits discrimination but also drives the transformation to a genuinely inclusive education system, consistent with Australia’s obligations under Article 24 of the CRPD.

2.1 The role of the DDA in realising inclusive education

A foundation of inclusive education is freedom from discrimination on the basis of disability, not only for individuals, but across the structures of the education system itself. The DDA therefore is a vital piece of legislation to protect the rights of students with disability and a necessary, though not sufficient, legislative instrument for enabling inclusive education. Together with the Disability Standards for Education (DSE), it has provided a mechanism for securing adjustments, challenging discrimination, and informing more inclusive policies in schools and systems.

However, our members’ experience highlights that the current DDA faces significant limits in driving systemic reform. These include:

reliance on a reactive, complaints-based model
the absence of strong proactive duties on education providers
inconsistent guidance on “reasonable adjustments” and “unjustifiable hardship” between the DDA and DSE
challenges by educators and education duty holders in understanding and translating obligations into practice, resulting inconsistencies in compliance across schools and education systems
limited accountability mechanisms.

Collectively, these shortcomings constrain the DDA’s effectiveness in advancing inclusive education. Strengthening the DDA is therefore critical.

2.2 Scope of our submission

Our submission focuses on reforms to the DDA that most directly affect students with disability and the realisation of inclusive education. Drawing on the lived and professional experience and expertise of our members we respond to five key areas of the Issues Paper:

Part 1: Updating understandings of disability and disability discrimination

We recommend adopting a CRPD-aligned definition of disability, strengthening interpretation provisions, and expressly recognising intersectional discrimination.
Part 2: Positive duty to eliminate discrimination

We support introducing a national positive duty, applying to all education providers, to take reasonable and proportionate measures to not only prevent discrimination but also to promote equality and inclusion.
Part 3: Stand-alone duty to provide adjustments and reforming unjustifiable hardship

We support replacing “reasonable adjustments” with “adjustments” and introducing a clear stand-alone duty to provide them, except where this would cause unjustifiable hardship. The defence of unjustifiable hardship should be set at a high bar and consider additional elements, which we outline. We oppose the misuse of unjustifiable hardship as a gatekeeping tool to deny enrolment of students to mainstream settings.
Part 5: Exemptions

We recommend narrowing or removing education-related exemptions that entrench segregation and exclusion
Part 6: Modernising the DDA

We support modernising the DDA, strengthening AHRC powers in respect of the DES and introducing reporting requirements for education providers.

Across all these areas, our recommendations are guided by:

the human rights model of disability

the right of every child and young person to inclusive education under Article 24 of the CRPD
the importance of accountability, transparency, and co-design with people with disability, their families and educators.

3. Updating understandings of disability and disability

discrimination (Part 1)

3.1 Definition of disability

Many educators have become familiar with the definition of disability used in the DDA through its application in the Nationally Consistent Collection of Data on School Students with Disability (NCCD) process. The NCCD identifies students that have a disability, as defined by the DDA, and who need the physical school environment, teaching and/or school practices to be adjusted to be able to access and participate on the same basis as peers.

To ensure the definition of disability aligns with contemporary understanding, we recommend a broad, inclusive impairment related definition, as referred to in General Comment No. 6 from the CRPD Committee, 13 ensuring protection for actual, past, perceived and future disability, along with behaviour that is a symptom or manifestation of the disability. We consider that a broad, inclusive impairment description remains a necessary aspect of the definition to ensure robust application in practical processes such as the NCCD.

The revised definition should not include:

deficit-based terms (e.g. ‘malfunction’, ‘malformation’, ‘disfigurements’ and ‘disturbed), nor
overly medical language such as ‘disorder’, where ‘condition’ can be used instead.

In addition, we recommend including in the objects of the DDA a recognition of the human-rights-based understanding of disability as arising from the interaction between people with impairments and attitudinal, environmental or institutional barriers.

This dual approach – updating the impairment-focused definition of disability and adding an objects clause recognising a rights-based understanding – would:

maintain the current breadth of the definition, whilst removing deficit based language and ensuring sufficient detail and clarity for education duty-holders, supporting practical application including through the NCCD

promote a contemporary, human-rights-based approach to disability, encouraging educators to focus on identifying and removing barriers within learning environments rather than on individual impairment or diagnosis.

the focus to identifying and addressing barriers in the educational environment.

3.2 Interpreting the DDA in line with the CRPD

We support strengthening the objects clause of the DDA to:

make explicit the role of the DDA in giving effect to Australia’s obligations, and realising the rights of people with disability, under the CRPD
requiring the DDA to be interpreted in a way that is beneficial to people with disability, in line with the CRPD.

This would ensure that the DDA is consistently interpreted in ways that promote inclusive education, in line with Article 24 of the CRPD.

3.3 Intersectionality

There is a growing understanding among educators that intersectionality is not simply about students holding multiple identities, but about how structures of power and systems of inequality, such as ableism, racism and sexism, interact to shape students’ unique education experiences. 14

Intersectionality highlights that for some students, discrimination cannot be reduced to “disability plus another attribute.” For example, a First Nations student with disability may experience a distinct form of disadvantage arising from the interaction of racism and ableism within the structures of the education system, rather than from each operating in isolation or side-by-side.

Applying an intersectional lens enables education providers to recognise the structural barriers that disproportionately affect students at the margins. This

positions schools to design inclusive approaches that are more effective and reliable, so that students can experience genuine inclusion rather than partial measures.

At present, the DDA’s single-axis approach risks obscuring these realities. We support modernising the Act to:

explicitly recognise, within the objects clause, the role of the DDA to address and protect people with disability from intersectional discrimination
expressly allowing claims that recognise the intersectional nature of discrimination, where multiple attributes interact to create unique forms of exclusion.

3.4 Why these matter for education

Updating the DDA’s definition of disability, explicitly recognising intersectionality, and embedding direct references to the CRPD will have a powerful educative effect. By shifting the legal framing from an impairment-based view to a rights-based, barrier- focused understanding, the Act can reshape how educators understand disability. This will reinforce inclusive values, support consistent application of the NCCD, and establish a shared national understanding that drives cultural and practical change across the education sector. It will also strengthen educators’ professional practice by embedding a barrier-focused framework aligned with inclusive pedagogy.

4. Positive duty to eliminate discrimination (Part 2)

We strongly support the introduction of a positive duty into the DDA. We consider it should apply to all duty holders, including all education providers across government, Catholic and independent sectors, and all education stages.

In our experience, the DDA largely operates as a reactive tool in education, placing the burden on students and families to challenge discrimination after it has occurred. This results in considerable delay in identifying and implementing measures to prevent discrimination and enable access and participation, often relying on piecemeal retrofitting rather than proactive design for inclusion. Consequently, the DDA fails to address systemic practices such as:

gatekeeping at enrolment
inaccessible facilities, communication and technology

inadequate and inconsistent provision of adjustments and supports
inappropriate use of exclusionary discipline.

Under the CRPD, States are required to proactively identify and remove barriers and take positive measures to achieve equality for people with disability. In education, this requires providers to embed inclusion across every aspect of learning.

We therefore support a positive duty that shifts responsibility onto education systems to proactively identify and dismantle barriers before harm and exclusion occurs. Properly framed, this duty could be a powerful practical driver of cultural change, ensuring that anti-discrimination becomes a core operational requirement of education and inclusion.

A positive duty should do more than prevent discrimination. It should require education systems to take active, reasonable and proportionate steps to promote equality and inclusion. In education, this would progressively realising inclusive education.

4.1 Inclusive education as a discrimination-prevention measure

Inclusive education is a powerful measure to prevent discrimination. Central to inclusive education is a commitment to remove barriers that stop students learning together and meaningfully participate in the classroom and school community. It requires schools to actively create environments where every student feels valued, supported and able to thrive alongside their peers. In an inclusive education system, there is no place for discrimination.

A properly designed and implemented positive duty would translate these principles into practice by establishing clear, proactive responsibilities for education systems and providers to identify and remove barriers before discrimination occurs and to facilitate learning that is grounded in inclusive education. Ii would make inclusion a shared, system-level responsibility rather than a reactive, case-by-case response.

4.2 Costs, benefits and other impacts

In the education context, the benefits of a positive duty far outweigh the costs. Many of the measures required to comply, such as:

developing inclusive enrolment policies

ensuring educators are trained and supported to provide adjustments and to teach using universal design principles and accessible pedagogies
auditing accessibility of the learning environment (including physical and digital environments),

align with best practice approaches in realising inclusive education and ensuring access and participation for students with disability.

Benefits include:

reduction in discrimination complaints and disputes, saving time and resources for schools, families, and education departments
more consistent, sector-wide practices that provide greater clarity for educators
accessible environments and systems that reduce ongoing barriers and prevent the need for repeated individual adjustments
greater access to education and stronger inclusion of students with disability
safer and more respectful classrooms and schools that benefit all students.

Costs include:

initial investment in professional learning and upskilling of educators in respect of the requirements of the positive duty
additional time for leadership teams to plan, monitor and report on meeting the positive duty
short-term administrative costs for establishing new compliance and
accountability processes
undertaking accessibility audits and improvements to learning environments

These costs are manageable and can be built into existing planning and professional development cycles. Over time, efficiencies gained from consistent inclusive practice, together with fewer reactive disputes, will offset the initial investment. Introducing the duty will make the prevention of discrimination a core operational

requirement, ensuring that inclusion is embedded sustainably rather than treated as an add-on.

We encourage the Australian Human Rights Commission to co-design sector- specific guidance for education providers, together with inclusive education academics, practitioners, and students with disability, to show how the positive duty can be met in practice.

4.3 Exceptions or limits

The positive duty should apply universally to:

all education providers: government, Catholic, and Independent
in every education sector: early childhood education and care (ECEC), primary and secondary schooling, and further education.

We do not support broad exceptions that could be used to legitimise exclusion. We agree that the positive duty should be framed to require ‘reasonable and proportionate measures’, so the scale of the obligation is responsive to the size and resources of the provider. In the context of education, this must consider:

the significant public funding provided to education providers, including independent schools,
specific funding provided to support students with disability through disability loadings, which are informed by the NCCD and shared across both government and non-government sectors
the fundamental importance of inclusive education as a human right under Article 24 of the CRPD.

Given that Commonwealth disability loadings are distributed to systems that retain discretion over allocation, a universal positive duty provides an essential accountability bridge between funding and on-the-ground inclusion.

4.4 Planning, monitoring and accountability

It is important that compliance with a positive duty is demonstrated through structured action planning, monitoring and transparent reporting. In education, this could be operationalised through annual accessibility audits and inclusive education

strategic plans. This would give practical effect to the duty and ensure consistent accountability across all education stages and sectors.

4.5 Co-design and consultation

The positive duty should require education systems to work in genuine partnership with people with disability, their families, and educators to design, implement and review strategies to proactively prevent discrimination and promote equality and inclusion.

5. Encouraging inclusion in education (Part 3)

5.1 Duty to provide adjustments

We support the Disability Royal Commission’s recommendation to:

replace the term ‘reasonable adjustments with ‘adjustments’
to introduce a stand-alone duty to provide adjustment unless doing so would impose unjustifiable hardship, subject to stronger limitations and guidance.

Changing the term

In our members’ experience, the term ‘reasonable adjustments’ has created confusion for educators. Too often, it has been misinterpreted to mean that adjustments are discretionary, or that schools may determine whether the supports a student requires to equitably access and participate are “reasonable.” This has resulted in ambiguity and the application of a shallow threshold, where “reasonableness” is judged according to individual attitudes and beliefs about what a student should be entitled to. Such interpretation has led to variability in practice, unnecessary conflict between educators and families, and, in some cases, discrimination. Using the simpler term “adjustments” would provide greater clarity and align with established inclusive education pedagogical approaches.

Stand-alone duty

A clear, separate duty to provide adjustments would also strengthen the DDA in the education context by making the obligation clearer and reinforcing that adjustments are not optional but an essential part of education provision.

We note that consequential amendments would be needed to the DSEs to align with this duty and to emphasise that adjustments must be relevant, appropriate and effective for the student with disability. 15

Unjustifiable hardship

Our members’ experience is that the defence of “unjustifiable hardship” is often relied on by mainstream education settings to refuse or discourage enrolment of a student with disability, steering them instead toward segregated schools or units. Too often, claims of “unjustifiable hardship” are based on personal beliefs and attitudes, that reflect a limited understanding of disability inclusion and legal and professional obligations.

The true barriers are not hardship in including students, rather:

a failure to understand and effectively utilise school resourcing,
inflexible systems that prevent resources from being portable and responsive to student needs,
a lack of recognition of student rights and corresponding professional obligations.

The CRPD Committee has emphasised that assessing whether an adjustment imposes an undue burden requires considering the proportional relationship between the means employed and the enjoyment of the right concerned. 16

We support the Disability Royal Commission’s recommendation to include additional factors in this assessment, namely:

how much the person with disability has been consulted
what alternative options were available to remove or reduce hardship.

In addition to those proposed by the Commission, we recommend also including:

the extent to which the decision-maker has sought and considered rights- based advice from people with relevant knowledge and expertise in providing adjustments. In our experience, too often school leaders will make decisions without seeking external input from inclusive education experts to enhance their own knowledge and skill base.

‘the nature of the human right impacted’. In education, this would mean recognising the foundational importance of every child and young person accessing inclusive education.

The onus should rest with the education provider to demonstrate, with evidence, that: (a) relevant adjustments were identified and trialled; (b) the student had access to required supports; (c) less restrictive alternatives were genuinely considered; and (d) residual hardship remains unjustifiable after these steps.

We do not support courts considering “detriment to any person concerned” in the education context in isolation, as this risks framing inclusion as a burden on students without disability. The evidence demonstrates that inclusive education benefits the whole school community. 17 Including “the nature of the human right impacted” as an explicit factor would help to mitigate this risk.

Why this matters for education

Adjustments are central to participation, engagement, and positive outcomes for students with disability. A clear stand-alone duty to provide ‘adjustments’ would simplify legal obligations and strengthen accountability. Tightening the unjustifiable hardship defence would reduce its misuse as a gatekeeping tool to exclude students.

These reforms must be complemented by improved guidance in the DSE and improved professional development for educators, to ensure that obligations translate into practice.

5.2 Exclusionary discipline and suspensions

Exclusionary discipline denies students their right to education and perpetuates discrimination. The DRC heard extensive evidence of inappropriate use of suspension and exclusion of students with disability. These practices:

disrupt learning and social development
increase risk of disengagement, poor educational outcomes, and contact with the justice system
disproportionately impact students with disability, particularly First Nations students with disability. 18

Our members consistently report that:

exclusion is often used pre-emptively or punitively, rather than as a last resort
behaviour plans are frequently created after incidents, primarily to justify exclusion, rather than prevent future issues
students with disability are disproportionately excluded, most often:
- when approaches to behaviour of concern are made without early, collaborative consultation with students, their families and professionals with relevant expertise in trauma-informed behaviour support. This leads to an escalation of behaviours over time.
- in situations where appropriate adjustments or trauma-informed support have not been provided at the time or place of the incident
school disciplinary policies and procedures are based on ableist expectations and have an emphasis on strict compliance and the issuing of pre-determined consequences.

Amendments to section 22(2) and proposed definition

We support the intent behind Recommendation 7.2 of the Disability Royal Commission, which called for the DDA to be amended to expressly clarify that it is unlawful for an educational authority to discriminate against a student by suspending or excluding them on the grounds of disability. However, we suggest different wording to ensure it applies across education stages.

We suggest replacing ‘by expelling the student’ in section 22(2)(b) with:

‘by subjecting the student to exclusionary discipline’.

Exclusionary discipline should then be defined as:

‘actions by an educational authority or educational institution that results in the withdrawal of education or training from students with disability. It includes suspensions, expulsions, informal or undocumented removals, enforced part- time attendance, cancellation of enrolment in early childhood education and

care, or any other temporary or permanent change to a student’s enrolment, attendance or participation in learning activities.”

This is broadly consistent with the definition used by the Disability Royal Commission in its Final Report and is applicable to all education stages.

A broad definition is essential, as our members report that exclusionary discipline takes many forms outside of formal suspension and expulsion. These include informal withdrawal from classrooms, mid-day removals, enforced part-time hours, and, in early childhood education and care, cancellation of enrolment. Such practices are particularly harmful because they are often unrecorded and therefore hidden from scrutiny, despite having the same effect of denying students their right to education.

There is also a persistent lack of understanding among many education duty-holders that “disability” under the DDA includes behaviour that is a symptom or manifestation of disability. In practice, exclusionary discipline is typically justified on the grounds of safety or disruption, without any requirement to demonstrate that appropriate adjustments or trauma-informed supports were in place for the student with disability.

We recommend including within section 22 , a requirement that education duty- holders, in ensuring that are not subjecting the student to exclusionary discipline on the ground of disability, consider

whether the reasons for the use of exclusionary discipline relates to conduct or behaviour that is a symptom or manifestation of disability
whether they have met their duty to provide adjustments to the student
whether they have met their positive duty to prevent discrimination.

To give effect to the intent of the amendments, complementary measures are needed to build understanding of the DDA’s scope and the intersection between behaviour support. Training and guidance for educators and decision-makers should explicitly address these obligations to ensure the amended provision achieves its purpose in practice.

Scope of the protection

We support extending these protections across all education sectors, so all students with disability have equivalent protection under the DDA.

We do not consider a different approach is needed in higher education and vocational education and training. While language in this context may refer to various actions under student conduct and discipline policies, the definition of exclusionary discipline would capture all actions that results in the withdrawal or denial of education.

Special measures

We do not support section 45 of the DDA and 10.5(3) of the DSE allowing for segregated schools, units or classes under the guise of a special measure. This is inconsistent with the CRPD. We discuss this further in the next section.

6. Exemptions – special measures (Part 5)

We support the use of special measures where they promote inclusion, but not where they entrench segregation. In our view, section 45 of the DDA, as currently drafted, is not consistent with the CRPD.

Article 5(4) in the CRPD on ‘specific measures’ provides that measures which are necessary to accelerate or achieve de facto equality should not be considered discrimination. The CRPD Committee has confirmed that specific measures:

“must be consistent with all [the CRPD’s] principles and provisions. In particular, they must not result in perpetuation of isolation, segregation, stereotyping, stigmatization or otherwise discrimination against persons with disabilities.” 19

Segregated education breaches Article 24 of the CRPD and therefore we do not support it being allowed as a special measure under the DDA.

On language, we note the reference to ‘special’ needs in section 45 of the Act. This language does not reflect modern understandings of disability. 20 In the context of education, it has been a particularly contentious term which in our experience has contributed to othering and marginalisation of students with disability. 21 We suggest simply removing the word “special” in this section.

We also note that section 45 does not specify that the measures must be consistent with the aims and objects of the DDA. We consider this should be explicitly stated to prevent measures that diminish, rather than promote, ‘recognition and acceptance

within the community of the principle that people with disability have the same fundamental rights as the rest of the community’ 22, including in education.

This could be achieved via adding a definition of special measures to the DDA. We would suggest:

‘a special measure is positive or affirmative action to accelerate or achieve equality of opportunity and promote the aims and objects of this Act’.

Flexible learning programs

We note that students with and without disability may need flexible learning options, from time to time, for various reasons. We support flexible learning options that include different methods of attendance at school via virtual learning. This may involve a student:

connecting into their regular classroom remotely
undertaking part of their learning through a purpose-built platform that mimics a real classroom.

Flexible learning programs would be appropriately considered a special measure for students with disability.

While flexible learning options offer considerable opportunities and benefits for students with disability, there are also risks that need to be recognised and mitigated. The Disability Royal Commission reported that students with disability can be placed on arrangements of reduced school hours or part-time attendance. 23

There is a risk that flexible learning options could be incorrectly used to exclude students with disability from full-time access and learning alongside their same-age peers, particularly children with complex learning profiles.

While noting this is beyond the scope of the review, we recommend that the DSE allow for flexible learning arrangements based on a series of key principles, that seek to facilitate the appropriate use of flexible arrangements and mitigate the risk of their potential misuse. These principles should include:

physical school attendance should be the default expectation for all students

flexible learning options should only be considered after reasonable efforts are made to increase accessibility and inclusion in the physical classroom
all flexible learning options must be designed to maximise access and inclusion, and be responsive to each student’s strengths, support requirements and preferences
the use of flexible learning must not affect a student’s enrolment status at their regular school
flexible learning plans must be developed in collaboration with the student and their parent/caregiver, informed by input from allied health or other professionals as appropriate
flexible learning should prioritise participation in the regular classroom, using virtual tools to support access and connection with same-age peers
separate virtual learning platforms should be used only to enrich or enhance learning, not replace inclusive schooling
flexible learning arrangements must be documented in the student’s Individual Education Plan and subject to regular review.

7. Modernising the DDA for inclusive education (Part 6)

The DSE was intended to clarify rights and responsibilities under the DDA and to provide certainty for education providers. However, in practice, we have found that it has been ineffective in ensuring compliance because:

enforcement remains largely complaints-based, placing an unfair burden on students and families to act when rights are breached.
there are no systemic drivers to promote compliance by education providers
reporting is limited, with no transparency on whether schools and systems are meeting their legal obligations.

We therefore recommend:

Enhanced AHRC powers:

Investigation: We support expanding the AHRC’s powers to investigate systemic unlawful discrimination, issue compliance notices, and enter into enforceable undertakings.
Reporting: The AHRC could also be tasked with developing and publishing sector-wide findings regarding compliance with the DSE, to promote transparency and accountability.
Reporting framework: A national reporting requirement should be established for all education providers to demonstrate compliance with their obligations under the DDA (including the positive duty) and the DSE. This would strengthen accountability, enable monitoring of progress towards inclusive education, and provide transparency for students, families and regulators. A reporting framework should:
- be developed and implemented in close conjunction with education stakeholders, inclusive education academics and practitioners and representative organisations of students with disability.
- include providing data on enrolment, participation, adjustments, exclusionary discipline, and learning outcomes for students with disability
- align, as far as practicable, with existing NCCD processes to reduce duplication and ensure consistency

8. Conclusion

IEA welcomes the opportunity to contribute to this review of the DDA. We strongly support reforms that move the DDA from a reactive, complaints-based model to one that drives proactive and systemic inclusion across all education settings.

In summary, we recommend the Australian Government:

Modernise the definition of disability, by:
- retaining a broad, inclusive impairment-based description to ensure practical applicability (e.g. in the NCCD).
- removing deficit-based and medicalised terms

Strengthen the objects clause to:
- recognise the human-rights based understanding and approach to disability, as an interaction between impairment and barriers
- explicitly recognise the DDA’s role in giving effect to Australia’s obligations under the CRPD
- requiring the DDA to be interpreted in a way that is beneficial to people with disability and consistent with CRPD principles, including Article 24 (inclusive education).
Recognise and address intersectional discrimination, by:
- include explicit reference to intersectionality in the objects clause.
- enable claims where multiple protected attributes interact to create unique forms of discrimination or exclusion.
Introduce a positive duty in the DDA requiring education providers to take reasonable and proportionate measures to proactively prevent discrimination and promote equality and inclusion, applicable to all providers and education stages.
Clarify and strengthen the “unjustifiable hardship” defence by including additional factors such as:
- consultation with the person with disability and those with relevant expertise on inclusive practice
- the availability of alternative options to remove or reduce hardship
- the nature of the human right impacted.
Amend section 22(2)(b) to:
- prohibit discrimination by subjecting a student to exclusionary discipline, defined as actions that result in the withdrawal of education or training from students with disability
- require education duty-holders to consider whether (i) the reasons for the use of exclusionary discipline relates to conduct or behaviour that is a symptom or manifestation of disability, (ii) they have met their duty to provide adjustments to the student, and (iii) they have met their

positive duty to prevent discrimination and promote equality and inclusion.

1. Strengthen enforcement and accountability mechanisms by:
expanding AHRC powers to investigate systemic discrimination, issue compliance notices, and enter enforceable undertakings, and report on sector-wide compliance with the DSE
introducing national reporting requirements for education providers to demonstrate compliance with the DDA (including any positive duty) and the DSE
developing a national reporting framework for education providers that:
- is co-designed with education stakeholders, inclusive education experts, and representative organisations of students with disability.
- reports on enrolment, participation, adjustments, exclusionary discipline, and learning outcomes.
- aligns with existing NCCD processes to minimise duplication and support consistency.

IEA would be pleased to provide further evidence from an inclusive education practice and advise on practical implementation steps the AHRC may take following reform, such as co-designing guidance for education providers.

Embedding clear, practical guidance, professional learning and accountability mechanisms will be critical to ensuring that the positive duty and strengthened protections in the DDA deliver genuine change in education.

1 Committee on the Rights of Persons with Disabilities, General Comment No. 4 (2016) on the right to inclusive education, 16th sess, UN Doc CRPD/C/GC/4 (25 November 2016), [11].

2 Committee on the Rights of Persons with Disabilities, General Comment No. 4 (2016) on the right to inclusive education, 16th sess, UN Doc CRPD/C/GC/4 (25 November 2016), [9]. 3 Committee on the Rights of Persons with Disabilities, General Comment No. 4 (2016) on the right to inclusive education, 16th sess, UN Doc CRPD/C/GC/4 (25 November 2016), [11]. 4 Committee on the Rights of Persons with Disabilities, General Comment No. 4 (2016) on the right to inclusive education, 16th sess, UN Doc CRPD/C/GC/4 (25 November 2016), [11]. 5 Committee on the Rights of Persons with Disabilities, General Comment No. 4 (2016) on the right to inclusive education, 16th sess, UN Doc CRPD/C/GC/4 (25 November 2016), [11]. 6 Kate De Bruin, ‘Does inclusion work?’ in Linda Graham (ed) Inclusive education in the 21st Century: Theory, policy and practice, Routledge 2019, ch 3 pp 55–76; Conrad Oh-Young & John Filler, ‘A meta- analysis of the effects of placement on academic and social skill outcome measures of students with disabilities’, (2015), vol 47, Research in developmental disabilities, pp 80–92. 7 Kate De Bruin, ‘Inclusive Education: A review of the evidence’ in Linda Graham (2nd ed), Inclusive education in the 21st Century: Theory, policy and practice, Routledge 2023, ch 6 pp 95–114; Cole, C. M., Waldron, N., & Majd, M. (2004). Academic progress of students across inclusive and traditional settings. Mental Retardation, 42(2), 136–44; Dessemontet, R. S., & Bless, G. (2013). Impact of including children with intellectual disability on peers’ academic achievement. Intellectual and Developmental Disabilities, 38(1), 23–30. 8 As expressly noted in the report published by U.S. National Council on Disability, “there is no research that supports the value of a segregated special education class and school”, see National Council on Disability, The Segregation of Students with Disabilities (Report, February 2018) 20 https://www.ncd.gov/assets/uploads/docs/ncd-segregation-swd-508.pdf. 9 Kathleen Gee, Mara Gonzalez and Carrie Cooper, ‘Outcomes of Inclusive Versus Separate Placements: A Matched Pairs Comparison Study’ 2020, Research and Practice for Persons with Severe Disabilities, 45(4), p 223. 10 Kathleen Gee, Mara Gonzalez and Carrie Cooper, ‘Outcomes of Inclusive Versus Separate Placements: A Matched Pairs Comparison Study’ 2020, Research and Practice for Persons with Severe Disabilities, 45(4), p 234. 11 Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on equality and non-discrimination, 19th sess, UN Doc CRPD/C/GC/6 (26 April 2018) [63]. 12 Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on equality and non-discrimination, 19th sess, UN Doc CRPD/C/GC/6 (26 April 2018) [64]. 13 Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on equality and non-discrimination, 19th sess, UN Doc CRPD/C/GC/6 (26 April 2018) [19]. 14 Kimberle Crenshaw (1991) “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color.” Stanford Law Review, 43(6), 1241–1299; Kimberle Crenshaw (2016) “The Urgency of Intersectionality.” TEDWomen 15 Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on equality and non-discrimination, 19th sess, UN Doc CRPD/C/GC/6 (26 April 2018) [25(a)]. 16 Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on equality and non-discrimination, 19th sess, UN Doc CRPD/C/GC/6 (26 April 2018) [26(d)]. 17 Kate De Bruin, ‘Inclusive Education: A review of the evidence’ in Linda Graham (2nd ed), Inclusive education in the 21st Century: Theory, policy and practice, Routledge 2023, ch 6 pp 95–114; Cole, C. M., Waldron, N., & Majd, M. (2004). Academic progress of students across inclusive and traditional settings. Mental Retardation, 42(2), 136–44; Dessemontet, R. S., & Bless, G. (2013). Impact of including children with intellectual disability on peers’ academic achievement. Intellectual and Developmental Disabilities, 38(1), 23–30. 18 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final report, Volume 7: Inclusive Education, employment and housing, pp 163-166. 19 Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on equality and non-discrimination, 19th sess, UN Doc CRPD/C/GC/6 (26 April 2018) [29] 20 Gernsbacher, Raimon, Balinghasay and Boston, ‘ “Special Needs” is an ineffective euphemism” (2016) Cognitive Research: Principles and Implications 21 See also Joan Adams, Joan Swain and Jim Clark, ‘What’s So Special? Teachers’ Models and Their Realisation in Practice in Segregated Schools’ (2000) Disability & Society 15:2, 233-245. 22 Disability Discrimination Act 1992 (Cth) s 3(c). 23 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final report, Volume 7: Inclusive Education, employment and housing, p 158.