Disability Discrimination Act 1992 Review

Ensuring Equitable Access for Students with Disability in Tertiary Education

Submitted by: Australian Tertiary Education Network on Disability (ATEND) Date: 24th October 2025

DDAReview@ag.gov.au

https://consultations.ag.gov.au/rights-and-protections/dda-issues-paper/consultation/

Executive Summary …………………………………………………………………………………. 4

The Problem ………………………………………………………………………………………… 4

Key Reforms ………………………………………………………………………………………… 4

Protecting Academic Standards ……………………………………………………………… 5

Implementation Pathway ……………………………………………………………………….. 5

Outcome ……………………………………………………………………………………………… 5

2. Key Concerns Identified ………………………………………………………………………… 6

2.1 Ambiguity of “Reasonable Adjustment”……………………………………………….. 6

2.2 Overuse of “Unjustifiable Hardship” ……………………………………………………. 7

2.3 Burden of Disclosure ………………………………………………………………………– 7

2.4 Inherent Requirements …………………………………………………………………….. 8

2.5 Timeliness of Adjustments ………………………………………………………..––––– 8

2.6 Enforcement and Complaint Pathways ……………………………………………….. 9

2.7 Systemic Impact ……………………………………………………………………………. 10

3. Evidence from Case Studies ………………………………………………………..––––– 10

3.1 Sklavos v Australasian College of Dermatologists (2017) ……………..–––– 10

3.2 BKY v University of Newcastle (2014) ………………………………………….—— 11

3.3 Systemic Evidence: Sector Data and Complaints ……………………………—– 11

3.4 Implications for Legislative Reform ………………………………………….———– 12

4. Recommendations for Reform ………………………………………………………..—–– 12

4.1 Clarify “Reasonable Adjustment” ………………………………………….––––––– 13

4.2 Strengthen the “Unjustifiable Hardship” Defence ……………………………—— 13

4.3 Establish a National Consistency Framework ……………………………———– 14

4.4 Reform Inherent Requirements ………………………………………….–––––––– 14

4.5 Streamline Processes for Sharing of Disability ……………………………——— 14

4.6 Introduce Positive Duty ………………………………………………………..———–– 15

4.7 Integrate Accessibility into National Regulatory Frameworks ……………….. 15

4.8 Strengthen Enforcement and Accountability ……………………………———–– 16

4.9 Update the Disability Standards for Education, 2005 (DSE) ……………..—– 17

4.10 Resource Institutions for Implementation …………………………………………. 17

4.11 Support Sector Innovation …………………………………………………………….. 18

5. Protecting Academic Standards ………………………………………………………..—– 18

Protecting Core Competencies ……………………………………………………………… 18

Distinguishing Method from Outcome ………………………………………….———–– 18

Safety and Accreditation Requirements ………………………………………….——— 19

Balancing Inclusion and Standards ………………………………………….–––––––– 19

6. Implementation Pathway ………………………………………………………..–––––––– 19

6.1 Legislative Amendment and Regulatory Alignment ……………………………– 19

6.2 Co-Designed National Guidelines ………………………………………….———–– 20

6.3 Capacity Building and Sector Support ………………………………………….—— 20

6.4 Monitoring, Accountability and Evaluation ……………………………–––––––– 21

7. Conclusion …………………………………………………………………………………….—– 22

References …………………………………………………………………………………….–––– 23

Executive Summary

The Disability Discrimination Act 1992 (DDA) and Disability Standards for Education 2005 (DSE) have been pivotal in advancing equity, yet practice across higher education and VET remains inconsistent, slow, and overly burdensome for students with disability. This submission proposes targeted reforms that modernise the DDA, embed proactive duties, and protect academic and professional standards by defining adjustments around learning outcomes and inherent requirements, not fixed delivery methods.

The Problem

Despite clear legislative intent, students continue to face delays in adjustments, medicalised and costly disclosure processes, rigid “inherent requirements,” and adversarial complaint pathways. Providers lack consistent national guidance and transparent tests for “unjustifiable hardship,” resulting in a patchwork of practices that undermine both access and academic integrity.

Key Reforms

1. Clarify and Strengthen “Unjustifiable Hardship” and “Reasonable Adjustments”

Introduce evidence-based criteria (documented costs, pedagogical/safety impacts, alternatives considered) and require independent review/audit of hardship claims for unjustifiable hardship, and introduce clear, evidence-based, and proportionate guidelines for adjustments, to ensure consistency, transparency and defensibility across all higher education providers.

2. Codify positive duty

Require institutions to identify and remove barriers before they result in discrimination and require clear evidence of compliance as part of institutional registration.

3. Enhance Enforcement and Accountability

Establish Disability Ombudsman within ATEC; mandate annual accessibility reporting by universities, VET providers and RTOs; publish national compliance summaries for all levels of education.

4. Integrate Accessibility into Quality Assurance Frameworks

Amend the TEQSA and NVETR Acts to embed compliance with the DDA, DSE, AS EN 301 549:2020 (ICT accessibility), and Marrakesh Treaty obligations in accreditation and registration; require regulators to assess

flexible assessment, accessible placements, and timely access to print/digital materials.

5. Revise and Expand the Disability Standards for Education (2005)

Provide explicit, enforceable guidance for higher education and VET (including professional/competency-based programs); align with ICT accessibility standards and Marrakesh obligations; mandate professional development on inclusive pedagogy and accessible technologies.

6. Promote Proactive Inclusion and Innovation

Create a national inclusion incentive program; require public Disability Action Plans; establish a National Repository of Accessible Educational Materials to reduce duplication and remediation delays, and fund and resource all higher education institutions appropriately through an expanded Disability Support Fund. A similar fund needs to be established for VET so decisions for access and support in VET is not based on available funds but access alone. Perhaps each State can contribute to such a fund?

Protecting Academic Standards

Reforms safeguard qualification integrity by ensuring adjustments are evidence-based, proportionate, and linked to inherent course requirements. Flexibility focuses on how competence is demonstrated, never what must be achieved, preserving public safety and accreditation standards.

Implementation Pathway

A coordinated program of legislative amendment, co-designed national guidelines, capacity building (training, resources, funding), and regulatory monitoring/evaluation embeds consistent practice and measurable improvement across the sector.

Outcome

Modernising the DDA in this way will deliver faster, fairer, and more consistent access for students with disability, while reinforcing academic excellence. It aligns with national equity goals and international obligations, and positions Australia to deliver equitable, high-quality learning for all.

2. Key Concerns Identified

Despite the intent of the Disability Discrimination Act 1992 (DDA) and the Disability Standards for Education 2005 (DSE) to ensure equity in access and participation, significant gaps remain between legislative principle and institutional practice. The following concerns highlight systemic inconsistencies in implementation across Australian higher education and vocational education and training (VET).

2.1 Ambiguity of “Reasonable Adjustment”

The term “reasonable adjustment” remains one of the most contested elements of the DDA. Its interpretation is highly variable across institutions, leading to inconsistent and often inequitable outcomes for students.

Some universities/VET providers apply an overly narrow or risk-averse interpretation, equating “reasonable” with minimal or low-cost measures rather than genuine functional equity. Others defer to individual academic discretion without adequate policy guidance, resulting in uneven student experiences both within and between institutions.

This lack of clarity leaves students uncertain about their rights and staff unsure of their obligations. The absence of nationally consistent examples or benchmarks has created a patchwork approach that undermines both accessibility and academic confidence. The DDA would benefit from a statutory or regulatory definition that anchors “reasonableness” in functional impact, educational outcomes, and inherent course requirements, rather than subjective or resource-based thresholds.

We recommend that the term “Reasonable Adjustment” be retained in the updated Disability Discrimination Act (DDA), with clear guidance and a definition specific to higher education and VET. In university/VET contexts, adjustments must ensure equitable access to learning, assessment, and campus facilities while respecting the inherent requirements of the course the essential skills, competencies, and outcomes that all students must meet. Defining adjustments by outcome rather than method allows flexibility, ensuring students can achieve these outcomes without compromising academic standards or professional competencies.

A clear definition of “reasonable” is critical. Without it, requests for adjustments may be left open to interpretation, leading to inconsistent practices, inequities, or disputes. Removing the term “reasonable” would risk allowing any request to be treated as an adjustment, regardless of feasibility or impact, leaving institutions without a defensible position. Retaining “reasonable” provides necessary boundaries distinguishing feasible, lawful adjustments from those that are not workable or realistic. Defining “reasonable” within a higher education/VET context ensures decisions are fair, transparent, and evidence-based, protecting

both students and institutions. Where adjustments cannot be provided, a documented rationale for refusal ensures transparency, accountability, and defensibility.

The DDA should also recognise the operational realities and inherent requirements of universities and VET providers. Factors such as course accreditation, inherent requirements and financial resources, must inform decisions about adjustments. In addition, the process for seeking adjustments should strike a balance between fairness and accountability limiting unnecessary or repetitive evidence requests while retaining the ability to require appropriate documentation when needed to inform decisions. Timely implementation of adjustments should also be enforceable to prevent disadvantage. Students should have access to independent, supported complaint pathways to reduce the adversarial burden currently experienced by individuals. Clear definitions, supported by timely and enforceable compliance mechanisms, will provide guidance and consistency across higher education institutions.

This approach balances flexibility for students with the academic and operational realities of universities, reduces uncertainty, and supports consistent, fair, and defensible decision-making in higher education and VET.

2.2 Overuse of “Unjustifiable Hardship”

The “unjustifiable hardship” defence, while intended to balance institutional capacity with individual rights, is frequently used as a blanket justification for refusing or limiting adjustments. Institutions often claim hardship without providing transparent or evidence-based reasoning.

Few providers document the financial, logistical, or pedagogical analyses underpinning these claims, and there is currently no independent mechanism to verify their validity. As a result, students are left with little recourse and must pursue lengthy complaint processes to challenge decisions.

A reformed DDA should require that hardship claims be accompanied by documented costings, evidence of alternatives explored, and a statement of proportionality. Independent auditing of hardship defences would enhance accountability while ensuring that legitimate constraints are recognised in a fair and transparent manner.

2.3 Burden of Disclosure

The disclosure process remains a major barrier for students with disability. Many institutions require extensive, medicalised documentation — including diagnostic letters, clinical assessments, and detailed medical histories — to access even basic adjustments.

This approach reinforces a medical model of disability, framing students as problems to be proven rather than participants to be supported. The cost of obtaining medical documentation can be prohibitive, particularly for students from low-income, regional, or First Nations backgrounds. Furthermore, many students are reluctant to disclose due to stigma, fear of bias, or previous negative experiences.

Consequently, non-disclosure rates remain high, leading to underreporting of disability data and unmet support needs. A shift toward functional impact statements — supported by allied health professionals, disability advisors, or counsellors — would reduce unnecessary burden, promote timely support, and uphold privacy.

To reduce the burden on individuals seeking accommodations to disclose personal health information and engage in costly, time-consuming and often emotionally fraught processes; institutions need to implement their positive duty by adhering to principles of accessible frameworks such as Universal Design, Universal Design for Learning and the Web Content Accessibility Guidelines (WCAG) 2.2 (or current version) Level AA. This needs to be reflected in the DDA.

2.4 Inherent Requirements

While the concept of inherent requirements is intended to define essential competencies, it is often applied in ways that restrict rather than enable access. Many statements lack transparency or meaningful consultation with disability practitioners and students.

In practice, inherent requirements are sometimes written as rigid “lists of abilities” rather than flexible descriptions of outcomes, thereby excluding capable students who could demonstrate competence through alternative methods or with assistive technologies.

In professional or clinical programs, these requirements are frequently conflated with convenience or tradition rather than genuine safety or competency needs. This inconsistency creates reputational and legal risk for institutions and inequitable exclusion for students.

ATEND recommends that all inherent requirement statements be subject to external review, disability impact assessment, and consultation with lived-experience stakeholders to ensure they reflect essential learning outcomes and not outdated assumptions.

2.5 Timeliness of Adjustments

Even when adjustments are approved, delays in implementation remain a pervasive problem. Students regularly report waiting weeks or months for captioned materials, accessible readings, interpreters, or participation assistants.

These delays have tangible academic consequences — late access to course content, missed deadlines, and in some cases, withdrawal from study. In many institutions, administrative processes are fragmented, with communication breakdowns between disability services, academic staff, and third-party providers.

The timeliness of adjustments should be treated as an essential component of compliance under the DDA and DSE. National benchmarks — such as standard timeframes for captioning, accessible formats, and equipment provision — would promote consistency and reduce inequitable learning experiences.

2.6 Enforcement and Complaint Pathways

The current enforcement framework under the DDA is reactive, adversarial, and inaccessible. Students who experience discrimination must navigate complex complaint processes through their institution, the Australian Human Rights Commission (AHRC), or State/Territory bodies.

These mechanisms are slow, legalistic, and emotionally taxing. They place the burden entirely on the individual — often a student already managing significant barriers — to prove wrongdoing. Few students have the knowledge, financial resources, or psychological capacity to pursue formal complaints.

Moreover, there is no funded advocacy or support mechanism for students or their families to assist them through the complaint process. This leaves many cases unresolved or abandoned, and institutions unaccountable.

In an educational setting, internal complaints processes are often overly bureaucratic and time consuming. Complaint processes are dependent on individual’s knowing their rights and having the necessary resources to navigate and self-advocate. Often students are deterred by power imbalances and fear of academic reprisal. The establishment of the National Student Ombudsman has assisted addressing this imbalance, however internal systems and complaint pathways need to ensure individuals protected are appropriately supported.

A stronger support and advocacy model is needed, including:

• Dedicated independent disability advocacy services for higher education and VET students.
• Formal family engagement provisions, recognising that families often play critical support roles in navigating bureaucracy; and
• A specialised Disability Ombudsman (as recommended in Section 4) with power to investigate and resolve systemic issues without requiring individuals to bear the full legal burden.

2.7 Systemic Impact

Collectively, these concerns demonstrate that while the DDA establishes vital rights, the mechanisms for realising them are inconsistent, under-resourced, and insufficiently student-centred. The result is a fragmented and inequitable landscape where access depends more on institutional culture and capacity than on legal entitlement.

Without reform, the DDA risks remaining a symbolic rather than functional instrument of equity. Clarification, accountability, and proactive institutional duties are essential to bridge the gap between legislative intent and educational practice.

3. Evidence from Case Studies

3.1 Sklavos v Australasian College of Dermatologists (2017)

The Full Federal Court decision in Sklavos v Australasian College of Dermatologists significantly constrained the effectiveness of the Disability Discrimination Act 1992 (DDA) by placing a heavy evidentiary burden on individuals with disability. Under this interpretation, a complainant must prove that a failure to make an adjustment was because of their disability — an almost impossible standard in practice.

In this case, Dr Sklavos, a trainee dermatologist, developed a specific phobia related to the College’s clinical examinations. The College maintained that the clinical examination was the only valid way to assess competence and that altering this process would impose unjustifiable hardship. The Court agreed, finding the College’s assessment method reasonable and within its rights.

This outcome has had a chilling effect on the application of the DDA in education, effectively narrowing the scope of what constitutes discrimination in assessment and training contexts. It demonstrates that the current wording of “reasonable adjustments” creates interpretive ambiguity that often favours institutions.

ATEND recommends that adjustments be grounded not in the subjective concept of “reasonableness,” but in objective measures — namely, the functional impact of a student’s disability and the inherent requirements of the course or training program. Institutions must be required to consider alternative, equally valid assessment methods that uphold academic and professional integrity while mitigating disability-related disadvantage.

Consideration should therefore be given to replacing or qualifying the term “reasonable” to ensure that the duty to accommodate is clear, evidence-based, and proportionate — balancing disability impacts against inherent course requirements rather than institutional convenience.

3.2 BKY v University of Newcastle (2014)

In BKY v University of Newcastle, the New South Wales Civil and Administrative Tribunal (NSWCATAD) found that the University had unlawfully discriminated against a medical student with borderline personality disorder and bipolar disorder by refusing to extend her maximum enrolment period.

The student experienced extreme anxiety related to exams and performance assessments, resulting in incomplete coursework and avoidance of certain clinical rotations. Her psychiatrist provided evidence that her fear of failure and shame paralysed her ability to consistently engage in study. Despite this, the University declined to grant an extension beyond the standard eight-year limit for the Bachelor of Medicine program.

The Tribunal found a probable connection between the University’s decision and the student’s disability and ordered an 18-month extension. The ruling affirmed that rigid adherence to institutional timelines or policies can amount to discrimination where flexibility could have enabled equitable participation.

This case underscores that fair assessment and progression policies must consider both the psychological and functional impacts of disability and that time- based or procedural constraints should not override the principles of equity embedded in the DDA and DSE.

3.3 Systemic Evidence: Sector Data and Complaints

The Australian Centre for Student Equity and Success (ACSES) Students with Disability in Higher Education – 2024 Report reveals that although participation rates among students with disability are increasing, they remain underrepresented relative to the total student population and experience significantly lower success and completion rates. Persistent barriers include:

• Limited implementation of Universal Design for Learning (UDL) principles;
• Social and communication barriers between students and academic staff;
• Inconsistent access to disability services and adjustments;
• Additional challenges for students studying in regional and remote contexts.

The Australian Human Rights Commission (AHRC) Conciliated Cases Register further demonstrates recurring failures by educational institutions. Complaints commonly relate to delays in providing accessible materials, inadequate assistive technology, and slow or inconsistent delivery of approved adjustments. Resolutions often involve fee waivers, the provision of support

assistants, or additional leave — reactive remedies that indicate systemic procedural weakness.

3.4 Implications for Legislative Reform

Together, these cases and data reveal deep inconsistencies in how the DDA and DSE are interpreted and applied across Australian higher education. The term “reasonable adjustment” lacks precision, leading to confusion and uneven outcomes. There is also inadequate understanding among providers about how adjustments should be designed, applied, and evaluated.

ATEND submits that improved legislative language, national guidance, and sector training are urgently required to:

• Clarify the intent and scope of adjustments.
• Link adjustments directly to functional impacts and inherent course requirements; and
• Ensure that both students and institutions have a shared understanding of what constitutes an equitable, educationally sound adjustment.

These reforms would promote greater national consistency, uphold academic integrity, and restore the DDA’s original intent — to eliminate discrimination in education and ensure students with disability can participate fully and fairly.

4. Recommendations for Reform

To ensure the Disability Discrimination Act 1992 (DDA) remains fit for purpose in higher education and vocational education and training (VET), ATEND recommends the following proposed reforms. Together, these measures would enhance legal clarity, promote proactive inclusion, and ensure that academic and vocational standards remain rigorous and credible.

Key reforms:

• Clarify and Strengthen “Unjustifiable Hardship”
• Enhance Enforcement and Accountability
• Integrate Accessibility into Quality Frameworks
• Update the Disability Standards for Education (2005)
• Promote Proactive Inclusion and Innovation

The detailed recommendations below feed into these Key Reforms, and provide the detail and requirements for implementation. Together, these reforms and recommendations would modernise the DDA to meet contemporary educational realities, promote systemic accountability, and reaffirm Australia’s commitment to equitable, high-quality learning for all students.

4.1 Clarify “Reasonable Adjustment”

ATEND recommends adjustments to be defined by educational outcome rather than delivery method, and institutions required to document the pedagogical or operational rationale for any refusal of an adjustment.

The term “reasonable” should be retained but clarified to prevent both under- and over-application:

• It must not be used to justify minimal or tokenistic measures.
• Nor should it compel institutions to accept adjustments that would fundamentally alter course outcomes or safety requirements.
• This approach ensures fairness and proportionality — students receive what is necessary, and institutions are protected from demands that compromise essential standards.

4.2 Strengthen the “Unjustifiable Hardship” Defence

Shift of the burden of proof to institutions, requiring institutions to provide transparent, evidence-based justification for hardship claims.

The current “unjustifiable hardship” provision is inconsistently applied and often invoked without sufficient evidence. To restore balance between student rights and institutional feasibility:

• Introduce clear, evidence-based criteria for assessing “unjustifiable hardship,” ensuring consistency across higher education and VET sectors. Criteria should include documented costs, demonstrated academic or vocational impacts, and evidence of alternative options considered.
• Mandate independent review or audit of hardship claims to prevent misuse and ensure fairness, supported by transparent reporting on decisions and reasoning.
• Promote proportionality and accountability by requiring institutions to demonstrate that hardship claims are based on substantiated constraints, not convenience or resource aversion.
• Provision of Equally Effective Alternate Access Plans are required when an institution seeks to claim unjustifiable hardship to not provide

necessary accommodations. This document will outline how the institution proposes to provide equivalent access to information or services when technology, infrastructure or processes are not fully accessible.

Legislation should mandate documentation of:

• Financial and operational impacts.
• Alternative options considered; and
• A clear explanation of why the requested adjustment cannot be implemented without undermining learning outcomes.

This approach ensures consistency, accountability, and genuine balance between feasibility and equity.

4.3 Establish a National Consistency Framework

Create a Higher Education and VET Reasonable Adjustments Framework under TEQSA (and ASQA), providing:

• National benchmarks for adjustment processes and timelines.
• Examples of appropriate adjustments across disciplines and professional settings.
• Consistent expectations for consultation and documentation.

This framework would eliminate the current “postcode lottery” of inconsistent practices and strengthen national compliance.

4.4 Reform Inherent Requirements

Mandate external review and periodic validation of inherent requirement statements to ensure they reflect essential learning outcomes, not perceived ability ideals, or traditional or convenience-based barriers.

Require disability impact assessments and consultation with students, practitioners, and accrediting bodies to verify that requirements are genuine, justified, and inclusive.

4.5 Streamline Processes for Sharing of Disability

Replace medicalised documentation with functional impact statements endorsed by relevant professionals or disability advisors.

Create a national disability documentation register to reduce duplication and support student mobility across institutions.

This reform would reduce cost, delay, and stigma while ensuring adjustments are evidence-based and tailored to actual functional needs.

4.6 Introduce Positive Duty

ATEND supports the introduction of a positive duty in the DDA, particularly as it applies to higher education providers.

A positive duty fundamentally shifts responsibility from students with disability to complain about discrimination, to universities taking reasonable and proportionate measures to eliminate discrimination before it occurs. This rebalancing is crucial in addressing the inherent power imbalance within tertiary education settings, where students with disability may fear academic repercussions, damaged relationships with supervisors, or jeopardising their educational outcomes by making complaints. Currently, the burden falls on individual students to identify barriers, request adjustments, share their disability, and navigate complex complaint processes – often while managing their studies and the impacts of their disability.

A positive duty would instead require universities to proactively design accessible campuses, inclusive curricula, and equitable assessment processes that anticipate and accommodate diverse needs without requiring sharing of personal disability or health information as a gateway to access. This means universities should be creating accessible learning environments, providing multiple modes of engagement, ensuring physical and digital accessibility, and all training staff in inclusive practices as standard operating procedures.

By embedding accessibility and inclusion into the fabric of higher education institutions, a positive duty recognises that the responsibility for eliminating discrimination lies with the provider, not the student, and acknowledges that many students may choose not to share their disability but should still be able to participate fully in their education.

The implementation of positive duty should be supported by inclusion of accessibility into regulatory frameworks, and requisite oversight – as outlined in Recommendations 4.7 and 4.8 below.

4.7 Integrate Accessibility into National Regulatory Frameworks

Disability inclusion should be embedded within national quality and regulatory systems to ensure consistency and accountability. This includes integration of the DDA, AS EN 301 549, and Marrakesh Treaty Obligations into TEQSA and NVETR Frameworks

• Amend the TEQSA Act and NVETR Act to explicitly incorporate compliance with the DDA, DSE, and AS EN 301 549:2020 as part of provider quality assurance, accreditation, and registration standards.
• Require TEQSA and ASQA to assess whether institutional, universities, VET and RTO academic standards, curricula, and vocational practices appropriately accommodate diverse disabilities through flexible assessment methods, modified practical placements, or alternative demonstration of competencies.
• Embed ICT accessibility and print disability compliance into regulatory reviews by ensuring that TEQSA and ASQA assess providers’ implementation of accessible digital systems and adherence to the Marrakesh Treaty, guaranteeing timely access to learning materials for students with print disabilities.

4.8 Strengthen Enforcement and Accountability

Establish a dedicated Disability Ombudsman and empower TEQSA and ASQA to audit compliance with the DDA and DSE as part of quality assurance reviews.

To address current limitations in enforcement and compliance monitoring:

• Establish a dedicated Disability Ombudsman within ATEC, empowered to investigate complaints, monitor compliance with the DDA, DSE, and AS EN 301 549:2020 (Accessibility Requirements for ICT Products and Services), and impose penalties for non-compliance.
• Require annual accessibility reporting from all education providers, including higher education institutions and Registered Training Organisations (RTOs), detailing:
  • Adjustments and supports provided to students with disability.
  • Consultation and decision-making processes; and
  • Student outcomes and institutional accessibility performance indicators.
• A National Code to Prevent and Respond to Disability Discrimination is required. In line with the National Higher Education Code to Prevent and Respond to Gender-based Violence, institutions should be required to comply with identified standards and be required to report on number of complaints made annually.
• Publish national compliance summaries to improve transparency and encourage sector-wide continuous improvement.

• Assessment against a standardised Disability Maturity Model is required for all public institutions and education providers and results are to be made public.
• A Registry of Complaints to be published on the Australian Human Rights Commission website to ensure transparency. This will provide further incentive to all organisations to proactively address inclusion and accessibility.

Provide for systemic remedies — such as enforceable undertakings, mandated staff training, or institutional improvement plans — in addition to individual complaint outcomes.

Introduce fast-track conciliation processes for time-sensitive issues (e.g. exam adjustments, access to materials).

4.9 Update the Disability Standards for Education, 2005 (DSE)

Revise the DSE to include explicit guidance for higher education and VET contexts.

The DSE must evolve to reflect the complexity of higher education and VET delivery, as well as technological change.

• Revise the DSE to include explicit guidance for higher education and VET contexts, including professional degrees (e.g. medicine, nursing) and competency-based programs (e.g. trades, apprenticeships).
• Include specific provisions on ICT accessibility, aligned with AS EN 301 549:2020, and obligations under the Marrakesh Treaty to ensure timely provision of accessible digital and print materials.
• Mandate professional development for academic staff in Higher Education, VET & RTO trainers, and administrators on inclusive pedagogy, accessible ICT, assistive technologies, and rights-based approaches to reasonable adjustment.

4.10 Resource Institutions for Implementation

Expand and modernise the Disability Support Funding (DSF) to ensure universities and VET /RTOs have capacity to deliver timely, high-quality adjustments. While there has been increase in Federal University DSF funding we are yet to see similar for VET/RTOs and institutions are making decisions based on available budgets.

Tie funding allocations to student disability enrolment growth and complexity of need. Provide grants for high-cost supports to all providers, all levels of

education — such as interpreters, captioning, assistive technologies, and participation assistants — ensuring institutions are not disincentivised from meeting equity obligations.

4.11 Support Sector Innovation

True inclusion requires proactive leadership, not reactive compliance. To embed inclusive practice systemically:

• Introduce a national inclusion incentive program under the DDA to reward universities and RTOs that demonstrate innovative accessibility initiatives, such as embedding Universal Design for Learning (UDL) in curricula or investing in accessible infrastructure.
• Require all providers to develop and publish Disability Action Plans outlining their strategies for meeting DSE obligations, promoting inclusion, and improving outcomes for students with disability.
• Establish a National Repository of Accessible Educational Materials, leveraging Marrakesh Treaty provisions to streamline access to shared accessible resources, reducing duplication and remediation burdens across institutions.

5. Protecting Academic Standards

The Disability Discrimination Act (DDA) is essential for promoting equitable access to education. However, adjustments must not compromise academic integrity or professional standards. This principle aligns with recommendation 4.25 and 4.26 – strengthen the duty to provide adjustments and also takes into account the DDA’s recognition of inherent requirements and unjustifiable hardship (Issues Paper, Part 3, pp. 42-58).

Protecting Core Competencies

Essential learning outcomes represent the minimum standards required for safe and effective practice. These outcomes are often linked to accreditation and public safety obligations (Issues Paper, Recommendation 7.26, pp. 49-52). Adjustments should never dilute these competencies. While flexibility in delivery and assessment is appropriate, altering core requirements risks undermining qualification integrity and community trust.

Distinguishing Method from Outcome

The DDA requires adjustments to remove barriers, but these should focus on how students demonstrate competency, not on reducing the competency itself

(Issues Paper, Recommendations 4.25–4.26, pp. 42-52). For example, alternative assessment formats or assistive technologies may be appropriate where they enable a student to demonstrate the same level of achievement. Conversely, waiving critical tasks or lowering benchmarks erodes academic standards and professional credibility.

Safety and Accreditation Requirements

In disciplines such as health, engineering, law, and education, accreditation bodies set mandatory standards to protect the public. Institutions must comply with these standards and demonstrate where adjustments would compromise safety or accreditation requirements (Issues Paper, Recommendation 4.32, pp. 46-48). The concept of “unjustifiable hardship” should explicitly include risks to public safety and professional readiness, as noted in the Issues Paper.

Balancing Inclusion and Standards

Inclusive education is essential, but inclusion cannot come at the expense of competence or safety. Clear frameworks are needed to distinguish essential requirements from non-essential tasks and to document decisions where adjustments are limited by accreditation or safety considerations (Issues Paper, Part 3, pp. 42–58). This approach ensures fairness for students while safeguarding the quality and reputation of Australian qualifications.

6. Implementation Pathway

Delivering meaningful reform requires coordinated legislative, regulatory, and sectoral action. The following pathway outlines a phased, practical approach that ensures reforms are both implementable and sustainable.

6.1 Legislative Amendment and Regulatory Alignment

• Modernise Definitions and Language: Amend the DDA to reflect a human-rights and social model of disability, remove deficit-based terminology, and explicitly include psychosocial, neurodivergent and episodic conditions. Understandings and experiences of disability need to be considered in accordance with intersectional, cultural and personal identities. It is important to note that definitions of disability evolve over time. The language used in the DDA needs to reflect this diversity, complexity and changing nature of disability discourse.
• Clarify Obligations and Duties: Codify a positive duty to eliminate discrimination and to proactively identify barriers. Clarify the duty to make reasonable adjustments and statutory factors for “unjustifiable hardship.”

• Strengthen Enforceability of Disability Standards: Ensure the Disability Standards for Education are legally binding, with breaches subject to remedial orders or compliance notices.
• Align with TEQSA, NVETR and Higher Education Frameworks: Embed DDA/DSE obligations within TEQSA and NVETR provider standards to make compliance a core accreditation requirement.

6.2 Co-Designed National Guidelines

• Collaborative Development: Under the leadership of people with lived experience, establish a working group including universities, ATEND, ADCET, students with disability, peak bodies, and government to develop national guidelines within 12 months of legislative amendment.
• Scope and Content: Guidelines should include:
  • National examples of reasonable adjustments in learning, assessment, and placement contexts.
  • Templates for Inherent Requirement Statements and Disability Action Plans.
  • Standardised timeframes for accessible materials and adjustment implementation.
• Public Consultation: Draft guidelines to be tested through sector consultation and student reference groups to ensure practical application.

6.3 Capacity Building and Sector Support

• Professional Development: Develop national training modules on inclusive education, legal obligations, and Universal Design for Learning (UDL) for academic and professional staff.
• Resource Development: Create an accessible central portal (curated by ADCET or ATEND) housing case studies, checklists, and tools to support implementation.
• Funding and Resourcing: Expand the Disability Support Fund for Higher Education to support infrastructure improvements, assistive technology, and specialist staffing. Work towards harmonisation of HE and VET sector, to establish more consistent resourcing, support and processes across tertiary education. This will lead to smoother transitions and better experiences for students with disability.

• Continuous Improvement: Promote communities of practice to share innovation and address emerging challenges (e.g., UDL, AI and digital accessibility).

6.4 Monitoring, Accountability and Evaluation

• Integration into TEQSA and NVETR Quality Cycle: Require tertiary education providers to report annually on DSE compliance and progress under their Disability Action Plans.
• Independent Audit and Review: TEQSA and NVETR to conduct periodic audits and publish aggregated findings on sector performance and improvement areas.
• Student Feedback Mechanisms: Develop a national student feedback channel for reporting delays or failures in adjustment provision.
• Evaluation Framework: Establish a five-year evaluation cycle to measure the impact of reforms on participation, retention and completion rates of students with disability.

7. Conclusion

Australia’s higher education and vocational education sectors are at a critical juncture. The Disability Discrimination Act 1992 (DDA) and Disability Standards for Education 2005 (DSE) were landmark reforms, but three decades on, they no longer adequately reflect the scale, complexity, and diversity of today’s learning environments. The evidence presented in this submission — from case law, institutional practice, and student experience — demonstrates that while the DDA provides a vital legislative foundation, its implementation has become inconsistent, overly legalistic, and insufficiently responsive to contemporary educational realities.

Students with disability continue to experience systemic disadvantage: delayed or denied adjustments, excessive documentation requirements, and limited recourse when discrimination occurs. Institutions face uncertainty and inconsistent expectations, with the result that both equity and academic integrity are undermined. These are not isolated compliance failures — they are symptoms of a legislative framework that has not evolved alongside the modern education system.

Reform is now essential. A reimagined DDA must move beyond a reactive, complaint-based model toward one of proactive inclusion, accountability, and shared responsibility. The reforms proposed by ATEND in this submission set out a clear and practical pathway for achieving this goal:

• Clarify and strengthen the definitions of “reasonable adjustment” and “unjustifiable hardship” to ensure consistency, transparency, and defensibility.
• Modernise enforcement and oversight, establishing an Education Accessibility Ombudsman and embedding disability compliance into TEQSA and ASQA quality assurance frameworks.
• Integrate cross-sector obligations, including ICT accessibility (AS EN 301 549:2020) and Marrakesh Treaty provisions, ensuring timely access to digital and print materials.
• Revise and expand the Disability Standards for Education, providing specific, enforceable guidance for higher education, VET, and professional programs.
• Fund and resource institutions appropriately, through an expanded Disability Support Fund and targeted grants for high-cost supports. Find a mechanism/funding system to also fund high-cost needs in VET program.
• Embed positive duties, requiring institutions to identify and remove barriers before they result in discrimination.

These reforms will not weaken academic or professional standards — they will protect them. By defining adjustments around learning outcomes and inherent requirements, institutions can uphold the integrity of qualifications while ensuring all capable students have a fair opportunity to demonstrate competence. Inclusion and excellence are not competing objectives; they are mutually reinforcing pillars of a high-quality education system.

The vision outlined in this submission aligns with the aspirations of the Australian Universities Accord and broader national policy commitments to equity, participation, and lifelong learning. It also honours Australia’s international obligations under the UN Convention on the Rights of Persons with Disabilities.

ATEND and its members stand ready to collaborate with government, regulators, and the education sector to co-design and implement these reforms. Together, we can ensure that the DDA once again serves its original purpose — not as a symbolic safeguard, but as a living instrument of equity, accountability, and inclusion.

A strengthened DDA — modernised, enforceable, and supported by appropriate resourcing — will deliver a fairer, more consistent, and more inclusive education system. It will affirm Australia’s commitment to ensuring that every student, regardless of disability, can learn, contribute, and succeed to their fullest potential.

References

• AS EN 301 549:2020 (Accessibility Requirements for ICT Products and Services)
• Marrakesh Treaty
• Australian Centre for Student Equity and Success (ACSES). (2024). Students with Disability in Australian Higher Education – November 2024 Update.
• Sklavos v Australasian College of Dermatologists [2017] FCAFC 128.
• BKY v University of Newcastle [2014] NSWCATAD 63.
• Australian Human Rights Commission (2002). Alternative Dispute Resolution in Education Case Studies.
• ADCET (2023). Disability Discrimination in the Tertiary Sector: The DDA, the DSE, and Current Controversies.

• Punch, Duncan and Talbot-Stokes (2025). Experiences and Challenges of Students with Disability in Australian Higher Education.