Disability Discrimination Act (DDA) Review
Victorian Catholic Education Authority Submission
Contents
Part 1: Updating understandings of disability and disability
discrimination ……………………………………………………………………………………………………………. 4
- Redefinition of Disability ……………………………………………………………………………………………………… 4
- i. Removing deficit-based language …………………………………………………………………………………………………………. 4
- ii. Acknowledging intersectionality …………………………………………………………………………………………………………… 4
- iii. Practical considerations ………………………………………………………………………………………………………………………. 5
- Amending the definition of direct discrimination ……………………………………………………………………… 5
- iv. Removal of the comparator test …………………………………………………………………………………………………………… 5
- v. Burden of proof ………………………………………………………………………………………………………………………………….. 5
- vi. Reasonable adjustments and unjustifiable hardship ……………………………………………………………………………….. 6
Part 2: Positive duty to eliminate discrimination ……………………………………………………………………… 6
Conclusion ……………………………………………………………………………………………………………………………. 7
References ……………………………………………………………………………………………………………………………. 8
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Disability Discrimination Act 1992 (Cth) Review
Victorian Catholic Education Authority Limited (VCEA), the peak body and approved review body for Catholic schools in Victoria, works to ensure Catholic schools offer a high-quality, inclusive, and safe education for all students.
Central to VCEA’s mission is the advancement of every child throughout their educational journey to allow them to flourish in every dimension of their lives through the formation of their intellectual, spiritual, physical, and social capacities. Through the equitable sharing of resources among Catholic educational providers, VCEA’s mission is to enable students to grow in awareness of their unique gifts and to confidently embrace their future with hope, in faith, and through love.
VCEA represents Catholic school communities to peak bodies and to state and federal governments, and is responsible for ensuring proper governance, managing funding, and providing strategic leadership for the sector.
Catholic education, as a not-for-profit provider of educational services, makes a significant contribution to meeting the existing and future educational needs of the Victorian community, striving to provide a high quality, inclusive, and safe education for all students with a special focus on vulnerable populations. In 2025, VCEA represented the interests of approximately 215,300 students in 495 Catholic schools, which is about 20% of the total Catholic school student population in Victoria.
The Australian Government is conducting a review of the Disability Discrimination Act 1992 (Cth) (DDA) with the intent of modernising the act and addressing ongoing discrimination issues identified by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission).
The Disability Royal Commission’s Final Report was released in September 2023 and outlined 222 recommendations for all levels of government and service providers, including 15 recommendations specifically related to education. The Disability Royal Commission also made 15 recommendations to inform a review of the DDA, strengthening preventative measures and requiring a proactive approach that imposes a ‘positive duty’. In this approach, organisations would be required to take active steps to eliminate discrimination.
VCEA welcomes the opportunity to provide a submission to the Australian Government’s review of the DDA, acknowledging the concurrent review of the Disability Standards for Education 2005 made under that Act.
VCEA acknowledges that changes to the legislative context will directly impact schools and is committed to working through the consultation phase to fully understand the implications for education.
VCEA is committed to improving the experiences of people with disabilities.
As a key provider of education in Australia, our submission focusses on areas most relevant to primary and secondary education.
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Part 1: Updating understandings of disability and disability
discrimination
The DDA has been in effect since 1992 with a broad definition of disability informed by a social model that seeks to encompass all people with disability.
Societal understanding of disability has continued to evolve with rights-based approaches leading to a broadened understanding of societal practices that contribute to exclusion and cultural perceptions of disability.
While minor amendments to the DDA were made in 2009, the definition of disability continues to use language that reflects old deficit paradigms, including words like ‘malformation, malfunction and disturbed behaviour.’
Redefinition of Disability
i. Removing deficit-based language
VCEA supports a revised definition of disability that removes deficit-based language and adopts contemporary language, perhaps informed by a biopsychosocial model aligned to the World Health Organisation’s International Classification of Functioning, Disability and Health (ICF) (World Health Organisation, 2001).
This approach would leverage the ICF’s intention to provide a universal language and conceptual basis for health, disability, and functioning through a model that considers the complex interaction between a person’s health condition, their body functions and structures, their ability to perform activities, their participation in daily life, and environmental and personal factors (World Health Organisation, 2001).
The language should maintain legal rigour and clarity but reflect disability as part of human diversity rather than as a deficit.
ii. Acknowledging intersectionality
Separate legislation currently seeks to protect people from discrimination on the basis of many protected attributes aside from disability, e.g. the Age Discrimination Act 2004 (Cth), the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth).
This discrete approach to legislation does not adequately address circumstances where a person may be impacted by multiple forms of discrimination. Intersectionality recognises that these attributes are not discrete but intersect so that a person or cohort may have one or more disabilities, be from a culturally diverse or First Nations background, and experience discrimination on the basis of multiple intersecting attributes.
VCEA supports culturally inclusive approaches that recognise intersectionality and related barriers.
Culturally inclusive approaches must specifically recognise First Nations’ perspectives.
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The enrolment of Aboriginal and Torres Strait Islander students attending Victorian Catholic schools has nearly doubled since 2019.
In 2025, 112 Victorian Catholic schools received support to meet the needs of refugee background students, and 61 schools welcomed newly arrived students from 38 different countries.
Intersectional recognition would recognize all forms of diversity and remove the burden placed on those seeking to lodge a complaint from the administrative burden of proving that they were unfavourably treated on the basis of one protected attribute, where several may apply.
iii. Practical considerations
As an educational authority, VCEA notes that any change to the definition of disability will impact on the Disability Standards for Education 2005 and school practices.
While a revised definition that reflects contemporary understandings is needed, this new definition needs to provide clear parameters for educators so that practices allow for relevant evidentiary requirements to be met.
It will be essential that a carefully considered plan is implemented to ensure that educators are well informed of the changes, the associated implications for practice and the intended outcomes.
The cost of implementation for the education sector will also need to be considered in light of the well- documented teacher shortages and workload issues.
Amending the definition of direct discrimination
iv. Removal of the comparator test
The comparator test requires the person with a disability to prove that they have experienced direct discrimination when compared to a person without a disability in similar circumstances and that they were treated less favourably because of their disability.
VCEA advocates for eliminating the comparator test, noting challenges in effective implementation and confirmation of a direct comparator—especially for individuals with intersecting identities. VCEA supports the adoption of the detriment test, which centres on whether a person with disability has experienced unfavourable treatment.
The application of a detriment test addresses the current challenges and simplifies the process whilst retaining the intended outcomes.
The Disability Royal Commission noted reports of the difficulties people faced in identifying a direct comparator and establishing causation for the treatment as being their disability.
v. Burden of proof
VCEA acknowledges that the current model, under which the initial burden of proof rests solely with the applicant, requires review.
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While VCEA recognises the difficulties for a person with a disability to establish the reasons for the treatment, there is some concern about the proposal to shift the burden of proof completely to the respondent.
This shift may place an additional burden on education providers to establish that the treatment was not unfavourable and that it was not directly due to a disability. There may be many reasons for decisions made by schools, given the intersectional nature of policy and procedures including enrolment criteria, such as school zoning, priority enrolment listings (baptised members of the parish, siblings etc), class size, etc.
Where multiple policies intersect, it may give rise to disputes.
Shifting the burden of proof onto schools is likely to increase the number of disputes and claims, as well as magnify the administrative workload this poses.
The Disability Royal Commission proposed changes recommending that the applicant must establish detrimental treatment and their disability status is reasonable and aligns to the United Kingdom’s legislation, which requires the applicant to establish discrimination first, providing an initial safeguard relating to unmeritorious claims or providing a context for the scale of discrimination, if proven. Furthermore, United Kingdom Court judgements could provide guidance for Australian court decisions.
vi. Reasonable adjustments and unjustifiable hardship
In the current legislation an act that disadvantages a person or people with disability but is considered reasonable under the circumstances does not constitute indirect discrimination.
There is also a provision for an exception if avoiding the discriminatory action poses an unjustifiable hardship.
VCEA supports the recommendation to replace all references to ‘reasonable adjustments’ with ‘adjustments’, acknowledging the misconceptions inherent in the existing term and that it is not well understood. To counteract the resulting unqualified duty to make any adjustment requested, VCEA would support a clearly expanded definition of unjustifiable hardship (option 2), acknowledging the importance of consulting with the person with disability as an integral part of this process.
However, it is important that any updated definition ensures that the obligation to provide adjustments for a student is based on the evidence about what is in the best educational interests of the student in a school context. This would also provide a protective mechanism where the adjustment requested conflicts with the duty of care responsibilities to the student (best interests test).
This updated definition must also be underpinned by a flexibility mechanism such as a human rights proportionality test - weighing up competing rights and interests, including that of the broader school community, in a relational rather than financial way.
Part 2: Positive duty to eliminate discrimination
The introduction of a positive duty to eliminate discriminatory practices has been effective in a number of contexts. The Sex Discrimination Act 1984 (Cth) was amended in 2022 to introduce this positive obligation and
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has been successful in both raising awareness of discriminatory practice and associated policy and procedural changes to reduce and eliminate barriers. Duty holders are far more aware of gender equity and unfair practices are far more likely to be ‘called out’ and subsequently addressed.
In principle, VCEA supports the intent of introducing a positive duty into the DDA, requiring duty holders to proactively assess their compliance with their obligations and ensure people with disability are not being subjected to discrimination.
In practice, education providers are already exercising this duty, in responding to their obligations under Ministerial Order 1359 - Child Safe Standards made under the Education and Training Reform Act 2006 (Vic) and the Disability Standards for Education 2005 made under the DDA.
The Disability Standards for Education 2005 requires education providers to take proactive steps to prevent discrimination, that is in enrolment standards and adjusting curriculum so that students with disability may participate on the same basis as students without disability.
Challenges continue to exist with implementation and ongoing education is required for teachers and school leaders.
Should the DDA introduce a positive duty, careful consideration must be given to ensuring clarity for those seeking to understand how this should be practically applied in varying contexts. For example, when planning a school camp or outdoor education experience, schools would need to identify the needs of the student cohort and plan accordingly.
Furthermore, the success of introducing a positive duty into the DDA into educational settings would be reliant on key implementation procedures including the development of comprehensive resources to support practical implementation in educational contexts, training for teachers, school employees and key duty holders, and increased community awareness about the changes.
A series of case studies illustrating how the positive duty should be considered in varying circumstances would assist schools to continue to offer a broad curriculum including enrichment activities both on and offsite.
Conclusion
As the Approved Authority for Catholic school education in Victoria under the Australian Education Act 2013 (Cth), VCEA ensures that Victoria’s Catholic schools are resourced and supported to provide exceptional education and high-quality pastoral care to every student.
This submission focuses responses to those sections of the review that will support our work with Catholic school proprietors to provide more welcoming, safe and inclusive environments catering for the needs of all students.
VCEA reaffirms its commitment to ensuring that every student enrolled in a Catholic school across Victoria can learn and thrive in safe, inclusive and equitable environments.
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We welcome the opportunity to contribute to improving the DDA and promoting authentic inclusion so that students with disability achieve their full potential through education and learning.
We recognise the significant societal change experienced in Victoria over the three decades since the DDA commenced and welcome the opportunity to contribute to the clarification and modernisation of this Act, aligned with the shared goals of eliminating so far as possible discrimination against people on the basis of an impairment, improving educational outcomes for all students and reducing administrative burden on educators.
VCEA supports the review of the DDA and has provided sector-specific feedback to contribute to reforms that respect human dignity, uphold fairness, and strengthen inclusive practice in Victorian Catholic schools.
VCEA thanks the Australian Government for the opportunity to submit to the Disability Discrimination Act Review.
References
Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (November 2023) https://disability.royalcommission.gov.au/publications/final-report
World Health Organisation (2001). International classification of functioning, disability and health. https://www.who.int/standards/classifications/international-classification-of-functioning-disability- and-health
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