NDIA Accountability Project

Recommendations for improving education and addressing discrimination

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Advocacy for
Disability
Access and
Inclusion Inc.\

Advocacy for Disability Access and Inclusion
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advocacyfordisability.org.au

13 November 2025

Attorney-General, The Hon Michelle Rowland MP Attorney-General’s Department

Via submission website only

Dear Minister Rowland

RE: Submission — Disability Discrimination Act 1992 Review

Advocacy for Disability Access and Inclusion (ADAI) are an advocacy organisation based in North Adelaide, South Australia, with offices also located in Berri, Mount Gambier and Port Augusta. ADAI advocate for and with people with disabilities across South Australia.

ADAI welcomes the opportunity to make a submission to the Disability Discrimination Act 1992 (the Act) Review. ADAI have considered the Act and the available Review documents in preparing this submission. ADAI recommend that any amendments include early and regular consultation with the community.

ADAI have closely considered the aspects of the Act which relate to Education in Part 1. Much of the provided information is taken from ADAI’s Submission to the Disability Royal Commission ‘Education: systemic neglect of students with disability | Submission no.2 of ADAI to the Royal Commission’. ADAI have also provided feedback to a select number of suggested Review questions in Part 2.

PART 1 - Education

ADAI contend that the structure of the education system does not support the right to access education, and that the balance of power is held strongly by the schools and the Department for Education (the Department). This can lead to the individual needs of students being missed or ignored.

The Disability Standards for Education 2005 (Cth) (the Standards) outline the requirement for schools to ensure that students with disability can access and participate in education on the same basis as students without disability. Sadly, ADAI hear many stories of these Standards not being upheld. Students living with disabilities are too often denied an inclusive education.

ADAI have worked with children whose teachers use suspensions and exclusions as behaviour management strategies, which significantly impacts students’ sense of belonging as they can miss weeks or even months of their education. ADAI finds that schools often breach their requirements under the law by directly and indirectly discriminating against students.

The Disability Standards are also joined by a set of Guidance Notes to assist schools to interpret and apply the standards. The Guidance Notes set out explicit steps the schools should take to ensure students are supported at school, for example through the making of reasonable adjustments. The Guidance notes state that ‘the need for an adjustment and the nature of an adjustment should be determined in consultation with the student or their associate’. ADAI rarely see this consultation occur. Often, if a school is willing to make adjustments, this will be done through a One Plan, which a teacher or principal may complete on their own without input from the family. ADAI believe that clearer guidance for schools should be provided in either the Act or the Standards.

Remove the Reasonable and Necessary Barrier

Unfortunately, ADAI regularly see schools and education facilities discriminating against students by breaching the Act. ADAI believes that it can be difficult to overcome the ‘reasonable and necessary’ hurdle. We recommend that the Act should be changed to make it more inclusive and remove the high ‘reasonable and necessary’ barrier. ADAI finds that if schools say, what is being asked of us is beyond what is reasonable because we don’t have the resources, they consider that they are not required to make any accommodations for the student. One of the most common issues that families come to ADAI for assistance with is the failure of a school to provide the necessary and reasonable supports for a student. ADAI sees many schools failing to provide the necessary and reasonable supports because they are unaware of their obligations, have limited resources, or are unwilling to accommodate the needs of individual children as they believe this conflicts with the needs of the class.

Complaints Process

ADAI recommends improving the complaints process to ensure that it is accessible for families to access, and that it does not place an overwhelmingly high burden on the complainant. Often, after dealing with a complaint individually with the school, and it hasn’t been resolved, families choose to move their children or drop the complaint. The process of applying and following up with a complaint to the Commission is considered too onerous. Most often, after a complaint has been resolved or withdrawn, the family no longer has the energy to make any further complaints to the Commission.

Expelling a student on the grounds of their disability

ADAI recommends that all external suspensions and expulsions be abolished. ADAI see many breaches of the Act when external suspensions and expulsions are made against students with a disability.

Case study: Jayden (pseudonym) – Expelled after multiple suspensions

Jayden age 6 has a behaviour plan supplied by his occupational therapist to the school. The school doesn’t follow his behaviour plan. When Jayden gets tired and frustrated his behaviour starts to change. The teacher raises her voice at him rather than speaking to him gently and giving him some time to rest (as is set out in his behaviour plan). Jayden reacts poorly, throwing his chair to the ground with force. The school suspends Jayden. This is repeated monthly until the school expels Jayden. The school never follows his behaviour plan.

OSHC Programs

ADAI recommend the definition of Education Authority be expanded to ensure the inclusion of Out of School Hours Care programs (OSHC) as educational bodies. ADAI hear from many families who experience discrimination in OSHC programs by either not being able to enrol their child, harassment towards themselves and their child, or by effectively disallowing families from enrolling their children by withdrawing or withholding necessary supports.

PART 2 – Review Questions

Discussion of Review Questions

  1. How should disability be defined in the Disability Discrimination Act?

    ADAI prefer the use of the term impairment to disability as it enables a more expansive view, or model, of disability. ADAI acknowledges and respects that there is a range of views about language and celebrates the right of all people to identify as they see fit.

  2. What factors should be considered in developing a new definition of disability?

    ADAI recommends removing wording which infers disability is abnormal and taking a more contemporary approach and understanding of disability.

  3. Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes?

    Yes, this would remove the current limiting and artificial process and more accurately reflect the reality for many people living with disability

  4. What test should be used to ensure that the definition of direct discrimination is easy to understand and implement for both duty holders and people with disability, and why?

    ADAI recommend the use of the detriment test as this removes the requirement for a comparator.

  5. How should the burden of proof be addressed in the Disability Discrimination Act?

    ADAI support adopting the Fair Work Act approach which provides a more balanced process.

  6. Should the reasonableness element in the definition of indirect discrimination be: a. removed b. retained and supplemented with a list of factors to consider c. replaced by a legitimate and proportionate test d. other

    Replaced by a legitimate and proportionate, more objective test.

  7. Should the Disabilities Convention be included in the objects provision of the Disability Discrimination Act?

Yes.

  1. Should the Disability Discrimination Act be expressly required to be interpreted in a way that is beneficial to people with disability, in line with human rights treaties?

    Yes.

  2. If there was a positive duty in the Disability Discrimination Act, who should it apply to?

    ADAI support the inclusion of a positive duty as has been enacted in other jurisdictions. ADAI suggest it should apply to all sectors but a reasonable and proportionate approach to implementation could be considered depending on the size of the entity.

  3. Would the creation of a stand‑alone duty to provide adjustments better assist people with disability and duty holders to understand their rights and obligations?

    ADAI support the inclusion of such a duty as this would make clear the obligations of duty holders by removing the burden on people with disability to initiate discussions about adjustments.

  4. Should the scope of the duty to provide adjustments apply only to the existing areas of public life covered by the Disability Discrimination Act, or extend to other contexts?

    ADAI suggest it also could apply to other contexts as well, but provide an exemption to duty holders where there are circumstances beyond their knowledge and control.

  5. Would removing the word ‘reasonable’ from the term ‘reasonable adjustments’ to align the language with the legal effect create any unintended consequences?

    ADAI support the removal of “reasonable” to provide clarity to the process. ADAI support a new test and recommend removing the ‘reasonable and necessary’ language.

  6. What is your preferred approach to achieving greater fairness and transparency in claims of unjustifiable hardship: a. the Disability Royal Commission amendment as proposed b. a new definition of unjustifiable hardship c. other Please expand on your response.

    ADAI support the amendment proposed by the Disability Royal Commission as this provides a comprehensive and transparent approach to decision making. However as noted there may need to be a scaled approach depending on the size of the duty holder.

  7. What are your views on amending the Disability Discrimination Act to consider the nature and extent of any adjustments made and encourage consultation between prospective or current employers and prospective or current employees before making employment decisions?

    ADAI support this proposal as having this consultation early can lead to a better understanding of each parties’ perspectives, requirements and needs.

  1. If the Disability Discrimination Act were to prohibit offensive behaviour and/or harassment, how should these terms be defined?

    ADAI recommend wording similar to the provisions in the Racial Discrimination Act. These terms should encompass behaviour that occurs online, requiring an expansive definition of public space.

  2. Given the recent legislative developments, are there any further gaps in the legislative framework that could be addressed by amendments to the Disability Discrimination Act to protect people with disability from vilification?

    ADAI recommend further amendment of the Criminal Code to include the offence of serious vilification, rather than making an amendment to the Act.

  3. How could the Disability Discrimination Act be amended to ensure that it covers policing?

    ADAI support amending the Act to cover all interactions between police and people with disability in a separate category to the general services category. ADAI consider this an important amendment and inclusion to the Act.

  4. Are there any specific circumstances or situations relating to policing or justice that should be excluded from the application of the Disability Discrimination Act?

    Exclusions need to be carefully considered. Whilst police work is important to the community people with disability are vulnerable and highly represented in the justice system. If implemented the police should be provided ongoing education and training as to their duties and obligations under the Act.

  5. Are there any other issues with the Disability Discrimination Act that should be considered as part of this review?

    The complaints process and pathway should be considered to ensure that it is fair and accessible for all.

We thank you for the opportunity to participate in this consultation and we look forward to any opportunity to discuss these amendments further.

Kind regards

Alexandra Turnbull Senior Advocate

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