Review of the Disability Discrimination Act 1992 (Cth)

Australian Centre for
Disability Law

ABN 15 992 360 253

Attorney-General’s Department
Robert Garran Offices

3-5 National Circuit

BARTON

ACT 2600

13 November 2025

Via email: DDAreview@ag.gov.au

Acknowledgement of Country

The Australian Centre for Disability Law acknowledges the Traditional Custodians of Country throughout Australia and their connections to land, sea, and community. We pay our respect to their Elders past and present and extend that respect to all First Nations peoples across Australia.

We recognise that sovereignty was never ceded.

Introduction

The Australian Centre for Disability Law (ACDL) is a specialist community legal centre based in New South Wales. We provide legal assistance to clients who are vulnerable and disadvantaged, and who often experience multiple form primarily on disability discrimination and related civil law issues. In 2022—2023, 53% of our disability discrimination casework related to education, followed by 20% in employment and 15% in the provision of goods, services, and facilities.

The Disability Discrimination Act 1992 is complex, inconsistent, and outdated. In its current form, it creates significant barriers to the effective protection and realisation of the human rights of people with disability and fails to give full effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities (CRPD).

Comprehensive reform is required to ensure the Act reflects contemporary understandings of disability, is consistent with Australia’s obligations under national and international human rights

frameworks and provides robust and accessible protections against discrimination. These reforms are necessary to create a fairer, more inclusive legal framework that upholds the rights, dignity, and equal participation of people with disability in all aspects of public life.

We welcome the opportunity to contribute to this review. This submission draws on our legal and policy expertise, as well as our direct experience supporting clients who have experienced disability discrimination. It responds to the questions outlined in the consultation paper and provides evidence-based recommendations for reform.

All case studies included in this submission have been de-identified and use pseudonyms to preserve client confidentiality.

Our Key Recommendations:

Legislative and Structural Reform

Impose positive duties on duty holders to: a. Provide adjustments for people with disability. b. Prevent harassment, discrimination, vilification, and victimisation.
Implement the Disability Royal Commission’s recommendations, including: a. Shifting the onus of proof from complainant to respondent.
Replace the comparator test for direct discrimination with a detriment test.
Adopt a human rights model of disability, reflecting the social model and inclusive definitions.
Consolidate federal discrimination laws into a single discrimination statute.
Enact a Human Rights Act for Australia to reinforce anti-discrimination legislation.
Adequately resource the AHRC to support compliance and enforcement.

Definition and Scope Enhancements

Modernise the definition of disability to reflect the social and human rights models.
Clarify coverage of future disabilities, including: a. Genetic predispositions. b. Medically recognised symptoms without known causes. c. Behavioural manifestations of disability.
Recognise intersectional discrimination by allowing claims for multiple or combined protected attributes.
Adopt a single unified definition of discrimination focusing on disadvantage rather than distinguishing direct/indirect forms.

Discrimination Tests and Burden of Proof

Replace comparator test with detriment test for direct discrimination.
Reverse the burden of proof, requiring respondents to justify their conduct.
Extend unjustifiable hardship provisions to both direct and indirect discrimination.
Remove the reasonableness element from indirect discrimination and replace with a legitimate and proportionate test.

Education-Specific Reforms

Define and regulate exclusion and exclusionary discipline in education.
Ensure excluded students retain access to educational materials.
Expand exclusionary discipline definition to include gatekeeping practices.
Improve compliance with Disability Standards for Education (DSE) by: a. Making them enforceable. b. Introducing statutory timeframes and mandatory consultation. c. Empowering AHRC with monitoring and enforcement powers.

Harassment, Offensive Behaviour, and Vilification

Introduce a dedicated harassment and offensive behaviour provision in the DDA.
Define harassment and offensive behaviour clearly, with appropriate thresholds and exemptions.
Include civil prohibition on disability vilification, consistent with Royal Commission recommendations.

Justice System and Government Services

Include policing duties within the definition of “services” under the DDA.
Extend DDA coverage to all government agencies, including child protection, corrections, courts, and tribunals.

Assistance Animals

Clarify legal requirements for assistance animals, including: a. National accreditation system. b. Standardised evidence requirements. c. Clear statutory obligations for duty holders.
Mandate training for service providers and launch a national public awareness campaign.

How should disability be defined in the Disability Discrimination Act?

In our practice, we rarely see clients fail to meet the current definition of disability in the DDA. The definition’s breadth—covering disabilities that presently exist, previously existed, may exist in the future, or are imputed—is useful. However, the language is dated, medicalised, and deficit based. Legislation can be inaccessible from the outset, and the definition itself can impose unnecessary complexity. Simplifying the definition so that it reflects the lived experience of people with disability and reduces the burden on them is critical.

ACDL supports modernising the definition to reflect the social model of disability, which recognises that disability arises from the interaction between individuals with impairments and attitudinal and environmental barriers that restrict participation. The definition should also embed a human rights—based approach, affirming dignity, equality and inclusion in line with Australia’s obligations under the CRPD.

A useful model is the CRPD itself, which describes disability as including physical, mental, intellectual, cognitive, neurological, learning, communication or sensory impairments, whether permanent, temporary or episodic, visible or invisible, that in interaction with barriers hinder a person’s full participation. We note, however, that direct transposition of the CRPD text may have unintended consequences because of the reference to has a ‘long-term physical, mental, intellectual or sensory impairment’.

The definitions adopted in the Disability Rights, Inclusion and Safeguarding Act 2024 (Tasmania) and the Disability Inclusion Act 2024 (ACT), give strong examples of contemporary drafting. They avoid narrow or overly medicalised wording and instead reflect functional limitations and barrier-based exclusion. These models should be carefully examined in shaping a modernised federal definition.

We recommend strengthening the wording around future disabilities to make clear that:

the definition includes genetic predispositions,
medically recognised symptoms are covered even where the underlying cause is unknown, and
behaviours that are symptoms or manifestations of a disability are part of the disability for the purposes of the Act.

Finally, any revised definition must be developed in close consultation with people with disability and their representative organisations, under the principle of ‘nothing about us without us.’

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

The Disability Royal Commission (DRC) recognised that people with disability often experience multiple, intersecting forms of discrimination—not only based on disability, but also in connection with other personal characteristics.1 The DRC specifically highlighted the compounded disadvantage experienced by First Nations people with disability, people from culturally and linguistically diverse backgrounds, LGBTQA+ people with disability, and women with disability.

Intersectionality is also recognised under the Convention on the Rights of Persons with Disabilities (CRPD), which states that ‘women and girls with disabilities are subject to multiple discrimination’ (Article 6(1)).

In practice, many of our clients find it difficult to separate discrimination based solely on disability from discrimination linked to other attributes. This complexity underscores the need for the law to better reflect the lived experience of intersectional discrimination.

ACDL recommends that the DDA be amended to explicitly recognise and address intersectional discrimination.

One single definition of discrimination

At ACDL, we recognise that many clients with disability find the DDA complex and challenging to navigate. This complexity can discourage individuals from lodging complaints, even when discrimination is evident. A frequent example is the need to distinguish between direct and indirect discrimination—a distinction that is often confusing and creates unnecessary barriers. It is common for complainants to allege one type of discrimination when, in fact, the other may be more appropriate. In our experience, the provisions relating to indirect discrimination are underutilised and difficult to establish.

What matters most is that the law enables individuals to show when they have been subjected to unfavourable or disadvantageous treatment. Retaining a rigid distinction between direct and

1 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2023). Final Report - Executive Summary, Our vision for an Inclusive Australia and Recommendations.

indirect discrimination may impose an unnecessary burden on complainants and undermine access to justice.

ACDL therefore supports further consideration of adopting a single, unified definition of discrimination that focuses on whether a person with a disability has experienced less favourable treatment or disadvantage. A model worth examining is that used in the Australian Capital Territory, where the Discrimination Act 1991 (ACT) provides: ‘For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else’ (s 8(1)).

Reforming the test for direct discrimination

The application of Purvis v New South Wales [2003] HCA 62 has resulted in an unduly narrow interpretation of the comparator test in disability discrimination cases. This approach places an excessive evidentiary burden on complainants, who must prove not only the existence of a disability but also that a hypothetical person without the disability would not have been treated in the same way. This unfairly disadvantages people with disability by failing to consider the broader context of differential treatment.

ACDL recommends that the test for discrimination focus on the effect of the conduct on the person with disability. Specifically, we propose the following reforms:

Replace the comparator test with a detriment test. Although currently applied to indirect discrimination, the detriment test should also apply to direct discrimination. This approach makes it easier for individuals to bring overlapping complaints and is more consistent with intersectional theory, which recognises the compounding—rather than merely additive—effect of multiple characteristics.
Reverse the burden of proof. Once a complainant establishes the existence of a disability and resulting disadvantage, the respondent should be required to prove that their conduct was not discriminatory.

Adoption of Disability Royal Commission Recommendation

ACDL supports shifting the onus of proof from the complainant to the respondent, requiring respondents to show that a condition or requirement found to be discriminatory is reasonable in the circumstances. We endorse the amendment proposed by the Disability Royal Commission (Recommendation 4.24), which states:

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

We recommend extending the concept of unjustifiable hardship to both direct and indirect discrimination. Once a complainant establishes the existence of a disability and either unfavourable treatment (direct discrimination) or disadvantage due to a requirement (indirect discrimination), the burden should shift to the respondent to justify their conduct. This reform removes the requirement for complainants to prove causation and instead requires respondents to show that their conduct was either for a non-discriminatory reason (direct discrimination) or that the requirement was legitimate and proportionate (indirect discrimination).

Comparative Jurisdictions

International and domestic examples demonstrate that the detriment test is both workable and fair.

The Australian Capital Territory’s Discrimination Act 1991 adopts a detriment-based approach, defining discrimination as treating a person ‘unfavourably because the other person has one or more protected attributes’ (s 8(2)). This model avoids the artificiality of a comparator and better reflects the lived experience of discrimination. Similarly, the United Kingdom’s Equality Act 2010 uses a detriment test for direct discrimination claims. Both examples show that a detriment test provides a more accessible and practical standard for complainants, while maintaining fairness for respondents.

Application in the Education Context

Shifting the burden of proof is particularly critical in education, where children and young people with disability frequently experience discrimination. Students are often denied access to education on the basis of an education provider’s belief that they would not ’derive any substantial benefit from the educational program.’2 Such gatekeeping reflects the limitations of the education provider rather than the abilities of the student.

Case study — refusal of enrolment at tertiary level

Jess, who has cerebral palsy, epilepsy, and a mild intellectual disability, was enthusiastic about enrolling in a vocational course at her local college. By age 23, she had already completed one course and was eager to further develop her skills and interests. Jess arranged a meeting with the course facilitator to discuss adjustments, as she uses a wheelchair, has use of only one hand, and communicates via a speech-generating device. Despite Jess clearly saying that she wanted to participate for personal development rather than employment, the facilitator expressed concern about her ability to meet industry standards because of her disabilities.

2 Dalton, A. & Irvine-So, C. (2024, January 15). What schools should know about the recommendations of the Disability Royal Commission. Moores Legal. Retrieved from https://www.moores.com.au/what-schools-should-know-about-the-recommendations-of-the-disability-royal-commission/ (accessed 20 October 2025)

Gatekeeping practices can include outright refusal to enrol, restricting attendance to part-time, or imposing conditions such as requiring a parent or aide to be present. Students are often permitted only partial attendance, with no clear pathway to full-time enrolment.

Requiring education providers to justify such restrictions by showing that accommodating the student would impose an unjustifiable hardship would reduce reliance on vague or subjective assessments of what is ‘reasonable.’ This reform would help ensure children with disability are not excluded or restricted from education based on discriminatory assumptions and would prevent the lifelong consequences of such exclusion.

Recommendation: adopt the detriment test for direct discrimination

ACDL recommends that the Disability Discrimination Act 1992 (Cth) be amended to replace the comparator test with a detriment test, consistent with approaches already legislated in the ACT and Victoria. Both jurisdictions define direct discrimination as treating a person ‘unfavourably’ because of a protected attribute, without requiring comparison to a hypothetical person without the attribute. Case law demonstrates that this approach provides greater clarity and accessibility:

In the ACT, cases such as Edgley v Federal Capital Press [2001] FCA 379 and D & Commissioner for Social Housing [2010] ACAT 62 establish that ’unfavourable’ treatment captures any conduct that disadvantages a person because of their attribute, regardless of whether the conduct is reasonable.
In Victoria, decisions including Kuyken v Chief Commissioner of Police [2015] VSC 204 and Hwang v Registrar of Business Licensing Authority [2024] VCAT 71 confirm that ‘unfavourable treatment’ is given its ordinary meaning—covering adverse treatment, disadvantage and even humiliation—and that the protected attribute need only be a substantial reason, not the sole or dominant reason, for the treatment.

This reform would reduce evidentiary barriers for complainants, align Australian law with human rights principles under the CRPD, and reflect the lived experience of people with disability, who should not be required to construct artificial comparisons to establish discrimination.

How could the definition of indirect discrimination be amended to ensure that it is easy to understand and implement for people with disability and duty holders?

ACDL recommends that the reasonableness element be removed from the definition of indirect discrimination and replaced with a legitimate and proportionate test. The reasonableness standard

has proven to be overly complex, creating uncertainty for complainants and duty holders alike and imposing an unduly high evidentiary burden on people with disability.

In addition, ACDL supports the removal of the existing wording, ’does not or would not comply, or is not able or would not be able to comply’, from the definition of indirect discrimination. This phrasing is unnecessarily convoluted and contributes to confusion about the nature of the test. A simpler formulation based on disadvantage would ensure the provision is easier to interpret and apply for both people with disability and duty holders.

These changes would bring the DDA into closer alignment with modern international and domestic frameworks, including the Equality Act 2010 (UK) and the Equal Opportunity Act 2010 (Vic). These models emphasise the effect of conduct over its perceived reasonableness, ensuring that the focus stays on the lived experience of disadvantage. Such reform would simplify the law, improve accessibility and consistency in application, and better realise the rights of people with disability following the CRPD and the recommendations of the Disability Royal Commission.

Case Study — attendance restrictions

Blake is an 11-year-old boy with autism, ADHD, and anxiety. He attends a specialist disability school but is currently allowed to attend only 15 minutes per day. During this time, he is expected to greet staff politely and speak and walk in a ‘normal’ way, meaning he is not allowed to flap his hands, skip, hop, jump, or run. His mother must remain at the school gate, within his line of sight, throughout the visit. The school has said that Blake must meet these expectations for four consecutive days before they will consider increasing his attendance. His mother believes these requirements set him up to fail, as many of the behaviours they are trying to prevent are direct manifestations of his disability.

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

Yes. The objects of the DDA should be amended to expressly reference the rights of persons with disability under the Convention on the Rights of Persons with Disabilities (CRPD).

While Australian courts can already consider international human rights principles in statutory interpretation through the common law and the Acts Interpretation Act 1901 (Cth), embedding the CRPD within the objects of the DDA would make this requirement explicit rather than implied. Such an amendment would ensure that the Act is consistently interpreted in line with Australia’s international obligations.

In addition, the objects should include reference to the responsibility of duty-holders to be informed by the rights of persons with disability under the CRPD, reinforcing a rights-based approach to compliance and advancing the DDA’s protective purpose.

Introduction of a positive duty

The current anti-discrimination framework is largely reactive. It places the burden on individuals to lodge complaints after discrimination has already occurred, leaving people with disability to shoulder the costs, stress and evidentiary barriers of enforcing their rights. A positive duty in the DDA would change this dynamic. It would require duty-holders to take reasonable and proportionate steps to prevent discrimination, harassment, vilification and victimisation before harm occurs. This shift would move the law from being focused on remedying individual wrongs to proactively preventing systemic problems.

ACDL strongly supports the Disability Royal Commission’s recommendation that such a duty should apply to all duty-holders under the Act. The scope should be universal, but the obligation itself should be scalable and proportionate—so that what is expected of a large government department or multinational company is different from what is required of a small business.

Case study — refusal of enrolment

Lawson is a 10-year-old boy with an intellectual disability. In kindergarten, he was severely hurt by another student, which left him fearful of school and other children.

His mother arranged a transition program with a nearby religious school, starting with a few hours twice a week. Over two years, Lawson gradually increased his attendance to four days a week, developed friendships, and became part of the school community. When his mother sought partial and then full enrolment, the school verbally refused, claiming Lawson would be a burden on other students and that they lacked funding for a full-time aide. However, Lawson’s mother later learned from her local MP that funding for an aide was in fact available

In practice, a positive duty in education would mean that schools could no longer rely on ad hoc or reactive adjustments. They would be required to ensure that students with disability are actively included. That might involve timely provision of reasonable adjustments, supporting teachers to implement individual education plans, training staff to understand disability inclusion, working in partnership with families, and closing loopholes that allow informal exclusion to occur without

oversight. Leadership is critical here—ministers, directors, principals and senior staff must be accountable for setting the tone and ensuring inclusion is embedded from the top down.

The duty should be backed with clear statutory guidance. This could include examples of what constitutes ‘reasonable and proportionate measures’ in different contexts, supported by enforceable codes of practice. Importantly, the duty must be enforceable. ACDL recommends that the Australian Human Rights Commission be given modern regulatory powers: the ability to conduct own-motion investigations, issue compliance notices, enter into enforceable undertakings, impose civil penalties for serious breaches, and carry out systemic inquiries. Without these tools, the duty risks becoming symbolic rather than transformative.

Lessons can be drawn from other areas. In Victoria, a positive duty exists in discrimination law, but it does not give rise to a stand-alone cause of action. This has limited its effectiveness. By contrast, the UK’s Public Sector Equality Duty requires public bodies to take equality into account when making decisions, with compliance audited by the Equality and Human Rights Commission. A similar approach in Australia—coupled with stronger enforcement powers and public accountability measures—would help ensure the duty is meaningful.

The benefits of such a reform are clear. It would reduce reliance on complaints, foster cultural and institutional change, and help ensure that equality is embedded in everyday decision-making. While there would be costs involved—training, policy development, data collection—these are predictable and proportionate and will likely be outweighed by the reduced costs of disputes, improved participation and better outcomes for people with disability.

In our view, a positive duty should apply broadly, with proportionality built in. It should cover all duty-holders, be enforceable through regulator powers and a stand-alone cause of action, and be supported by guidance, codes of practice and education. Only then will the DDA shift from a reactive framework to a proactive one that genuinely prevents discrimination and promotes equality.

Case study — discrimination in sport

Jai, aged 8, is a lower-limb amputee who wears a prosthetic leg. He actively plays cricket, basketball, soccer, athletics, and joins in play at school without needing adjustments.

A long-time member of his local Rugby League club, Jai was excluded at the start of this season when his team moved from non-contact “tag” to full-contact tackle rugby. Despite proposing a

reasonable adjustment—wearing a foam cover over his prosthetic leg designed for safe play—he was not permitted to participate.

Jai’s medical team confirmed he could safely play tackle rugby. His exclusion, despite expert support and a practical adjustment, constitutes discrimination and denies him equal participation in sport.

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?

Yes. In our view, this is a critical amendment.

The DDA should be amended to include a stand-alone positive duty requiring duty-holders to make adjustments for individuals and groups with disability. This reform would:

Align Australian law with international obligations under the CRPD.
Embed the social model of disability within the statutory framework.
Provide a mechanism for systemic reform by shifting the emphasis from reactive, complaint-based enforcement to proactive compliance and inclusion.

At present, the DDA does not impose a positive duty on duty-holders to make adjustments to enable equal participation. This contrasts with equivalent legislation in the ACT and Victoria, where such duties already exist. The current framework requires complainants to prove that conduct occurred because of their disability, perpetuating a deficit-based, formal equality approach that overlooks structural barriers and does not achieve substantive equality.

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, Rec. 4.26) recommended inserting the following standalone duty into the DDA:

It is unlawful for a person to fail or refuse to make an adjustment for (a) a person with a disability; or (b) a group of persons with disability, unless making the adjustment would impose an unjustifiable hardship.

We support this recommendation. The onus should rest with the respondent to prove that making an adjustment would impose unjustifiable hardship. This reversal of the evidentiary burden is essential to prevent duty-holders from avoiding compliance through inaction or refusal.

Application in Education

This reform is particularly urgent in the education context. Schools and education providers currently operate without a positive statutory obligation to make adjustments. In ACDL’s experience:

Schools are often unaware of their obligations.
Adjustments recommended by specialists are often ignored or inconsistently applied.
Families are forced to carry the burden of enforcement through complaints, often with limited options in regional and remote areas.

Embedding a positive duty would change this dynamic: education providers would be legally required to make adjustments in the first instance, with legal proceedings arising only where they do not comply. This would improve access to education, reduce reliance on individual enforcement, and ensure that children and young people with disability are not disadvantaged simply because their families cannot pursue lengthy complaints processes.

Case study — Refusal to make adjustments without a formal diagnosis Liam, aged two, had attended an early learning centre since he was one. Over time, he showed signs of speech and feeding delays and relied heavily on milk for nutrition, as he struggled to consume solids. The centre had a policy of not providing milk to children over the age of two. Initially, his parents supported staff efforts to encourage solids and reduce milk intake. However, when Liam continued to refuse solids, the centre would not offer milk as an alternative, leaving him hungry and distressed. The centre also refused to move Liam into the 2–3-year-old room because he had not weaned from the bottle. His parents eventually withdrew him from the centre, and shortly afterwards, Liam was assessed as being on the autism spectrum.

Implementation must be driven from the top down. While many disability liaison officers and frontline staff already work towards inclusion, leadership at departmental and institutional levels must be held accountable for ensuring that positive duties are embedded in culture, policies and practice.

Defining ‘unjustifiable hardship’

The DDA should also have clear statutory criteria for determining what constitutes unjustifiable hardship. These must balance certainty for duty-holders with sufficient flexibility to apply across varied contexts. Importantly, the test should be reframed to remove over-reliance on the notion of ‘reasonableness,’ which too often operates as a shield for inaction.

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ACDL recommends the concept of unjustifiable hardship should be reframed to reflect the Disability Royal Commission’s approach and the inclusive principles of the Disability (Access to Premises — Buildings) Standards 2010 (Cth). In determining whether hardship is unjustifiable, decision makers should be required to consider:

the extent and quality of consultation with people with disability; and
the availability of alternative measures to achieve substantive equality and minimise disadvantage.

To ensure consistency across frameworks, this revised definition should be adopted in section 11 of the Disability Discrimination Act 1992 (Cth) and mirrored in the Disability Standards for Accessible Public Transport 2002 (Cth) and the Disability Standards for Education 2005 (Cth).

Further, transparency should be strengthened by requiring duty-bearers to document the steps and evidence underpinning their assessment of unjustifiable hardship at the time an adjustment request is made, demonstrating genuine consideration of the relevant statutory factors.

Scope across public life

This positive duty should apply to all duty-holders and existing areas of public life, and those bodies exercising public power or delivering services that affect the lives of people with disability, including education, employment and essential services. It should require:

Timely identification and implementation of adjustments.
Transparent decision-making and consultation, with written reasons for refusals.
Review rights to ensure accountability.

Embedding such a duty would be a profound shift towards proactive, systemic inclusion, ensuring that equality for people with disability is not contingent on individual complaints but is a core obligation of all public and private actors.

Case study: a standalone duty to make adjustments Jackson is a Year 9 student with Developmental Coordination Disorder. Since enrolling in April 2024, his parents have repeatedly sought reasonable adjustments recommended by his paediatrician, including extra time for assessments and permission to use a laptop instead of handwriting. Although Jackson experiences physical pain when handwriting, his school has directed him to complete exams by hand, justifying its decision on the basis that ’HSC adjustments are difficult to obtain’ and that ‘no other students have those adjustments.’

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The school also claims that teachers, rather than medical practitioners, should determine the functional impacts of a student’s disability. This case highlights how current reactive frameworks allow inconsistent practices and informal exclusions to persist.

A positive duty here would require Jackson’s school to provide those adjustments requested by Jackson and his family.

Should the concepts of exclusion and exclusionary discipline be defined in the Disability Discrimination Act?

Yes. The DDA should be amended to protect the right to learn by specifically defining and regulating exclusion and exclusionary discipline in education.

Inclusive education is essential for children and young people with disability, offering opportunities to learn alongside peers, develop social skills, and improve long-term outcomes in education, employment and community life. Inclusive classrooms also benefit society more broadly by normalising and celebrating diversity. However, students with disability experience disproportionately high rates of exclusionary discipline—suspensions, expulsions and restrictions on enrolment. These practices cause serious harm: they lower educational attainment, increase the risk of socio-economic marginalisation and contact with the criminal justice system, and place additional burdens on families when parents must take time off work to care for excluded children.

Exclusionary discipline and the need for reform

ACDL regularly receives complaints from parents about the inappropriate use of suspensions, expulsions, and enrolment cancellations.

Case study — suspensions and expulsions Omar is a 13-year-old Year 7 student at a public school. He has autism, ADHD, ODD and anxiety, and a behavioural management plan designed to help him regulate his emotions and behaviour. Due to his disabilities, he sometimes swears or lashes out when distressed.

The school enforces a strict discipline policy: any swearing or physical behaviour results in automatic suspension, with suspensions increasing in length for repeat incidents. Throughout Year 7, Omar received progressively longer suspensions for relatively minor incidents, culminating in a 20-day suspension for what staff and students described as “clowning around,” not a genuine threat. The incident was not reported to his parents until after the suspension was issued.

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Omar’s mother repeatedly asked the school to apply alternative consequences in line with his behavioural plan, such as detention. The school refused. After his final suspension, Omar again misbehaved and was threatened with expulsion.

Increasingly, even preschool and kindergarten students are suspended or expelled. These actions are often a response to behaviours that are manifestations of disability, rather than deliberate misconduct. Instead of resolving underlying issues, exclusion compounds them, leading to academic decline, insecurity and distress.

Case Study - restrictive practices Tyrone, aged 9, has anxiety, ADHD, autism spectrum disorder, developmental delay, and oppositional defiant disorder. He attended a public school between September 2020 and August 2021 and required reasonable adjustments, including permission to use noise-cancelling headphones to manage stress and sensory overload.

Despite repeated requests from his mother, the school failed to engage in developing a Behaviour Management Plan and refused to allow Tyrone to wear his headphones. During an unexpected fire drill, Tyrone was not given his headphones, became distressed, and reacted aggressively. He was restrained by four teachers and isolated in a sensory room for about 20 minutes before being suspended for three days.

Following the suspension, the school prepared a Behaviour Management Plan without consultation with Tyrone or his parents. The plan failed to reflect his needs or acknowledge the harm caused by restrictive practices.

After the incident, Tyrone developed post-traumatic stress disorder, diagnosed by a child psychologist as directly linked to the fire drill and restraint. He was too fearful to return to school and was later withdrawn. His mother lodged a complaint with the Australian Human Rights Commission, and the matter was resolved through conciliation.

Many exclusions could be avoided if schools implemented reasonable adjustments such as behaviour management plans. In practice, however, consultation often focuses on what students cannot do’ rather than on making curriculum or environment adjustments to support participation.

Case study: exclusionary discipline Sabrina, aged 6, lives with ADHD, autism spectrum disorder, anxiety, and global developmental delay. She has struggled at school due to a lack of appropriate learning supports and limited

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collaboration between the school and her parents about required adjustments. Although the school claimed to follow her medical practitioner’s recommendations, they refused to share details of implementation.

Without proper support, Sabrina’s distress and dysregulation escalated, occasionally resulting in physical outbursts. The school responded with repeated suspensions and enforced part-time attendance of just one hour per day, reportedly to give her teacher a “break.” In 2023, Sabrina attended only seven weeks of full-time schooling. These exclusionary practices worsened her anxiety and left her increasingly isolated from her peers.

Eloise, aged 15, lives with autism spectrum disorder and two other disabilities. She attended a NSW public high school and required a controlled medication to be administered during school hours under a Department of Education plan. Over two years, her medication was missed or delayed on at least 129 occasions. During this time, the school imposed disciplinary action, including five suspensions, even when aware the medication had not been given.

Eloise missed 130 full and 158 partial school days, significantly disrupting her education. She fell behind in all subjects and was eventually transferred to a specialist support unit.

To address this, ACDL recommends that the DDA:

Be amended to include a specific section on exclusion, suspension and expulsion, consistent with Royal Commission Recommendation 7.2, which calls for exclusionary discipline to be used only as a last resort to prevent serious harm to the student, peers or staff.
Require that excluded students continue to have access to educational materials while out of school.
Expand the definition of exclusionary discipline to include gatekeeping practices—such as limiting enrolment to part-time, imposing conditions on attendance, or delaying or denying enrolment—particularly common in religious schools and affecting students with psychosocial or intellectual disabilities.

Systemic Barriers and Resourcing

Even with legislative reform, schools require sufficient funding and resources to meet their obligations. Teachers and schools often lack access to:

Specialist aides and equipment.
Disability-specific training.

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Infrastructure and transport solutions, particularly in regional, rural and remote areas.

Without targeted investment from state and federal governments, students with disability will continue to face barriers to full participation in education.

Reasonable Adjustments and Guidance

Legislative reform should be accompanied by clear guidance on what constitutes an adjustment in educational settings. Currently, schools retain significant discretion in determining whether adjustments are reasonable, leaving families with little oversight or recourse when recommendations from experts are ignored.

ACDL’s casework shows that exclusionary discipline often reflects leadership failures at the institutional level. While many frontline staff seek to support students, systemic change requires commitment from the top down to embed inclusive practice as a legal and cultural obligation.

Defining and regulating exclusionary discipline in the DDA is essential to:

Protect the rights of children with disability to inclusive education under the CRPD.
Prevent discriminatory practices such as gatekeeping, enrolment restrictions, and unwarranted suspensions or expulsions.
Ensure that exclusion is only ever used as a genuine last resort, and never as a substitute for making necessary adjustments.

Embedding these protections in the DDA, supported by adequate funding and clear guidance, would create a proactive framework that reduces discrimination, fosters inclusion, and improves outcomes for students with disability across Australia.

Case study: suspensions Liam, is 14-years-old with Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), Tourette Syndrome, and Oppositional Defiant Disorder (ODD). He experiences high stress, anxiety, and difficulties with emotional regulation, sometimes leading to behaviours of concern.

In 2022, Liam commenced Year 7 at his local secondary school. In September 2023, the school considered expelling him for ’serious behaviours of concern’ but later withdrew the decision. He was instead relocated to a tutorial support unit on another campus.

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During his enrolment, staff failed to administer his prescribed medications on more than 130 occasions, leading to deteriorating mental health and increased aggressive behaviours. On at least 129 occasions, the school imposed disciplinary action—including five suspensions—despite knowing his medication had not been given. Many behaviours prompting discipline occurred when Liam had missed doses.

The failure to provide consistent medical care exacerbated Liam’s condition and directly contributed to the behaviours punished. Rather than addressing his needs, the school’s actions compounded his difficulties and undermined his wellbeing.

How could the Disability Discrimination Act be amended to protect people with disability from offensive behaviour and/or harassment?

The DDA should be amended to introduce a dedicated harassment and offensive behaviour provision, applicable across work, education, services and online contexts. This would modernise the Act, strengthen protections for people with disability, and provide clear thresholds, appropriate defences, and regulatory powers to ensure compliance.

The Disability Royal Commission (DRC) has recommended adapting section 18C of the Racial Discrimination Act 1975 (Cth) to the DDA. Such a reform would prohibit offensive behaviour and harassment regardless of:

the frequency of conduct,
the setting in which it occurs (employment, education, service provision, or public spaces), or
the mode of conduct (in person or online).

This would close a significant gap in the current law, which does not expressly address harassment or offensive behaviour directed at people with disability.

If the DDA were to prohibit offensive behaviour and/or harassment, how should these terms be defined?

Harassment should be defined consistently with, and not contradict, the Disability Standards for Education 2005, which describe harassment as ‘unwelcome conduct in relation to a person’s disability that humiliates, offends or intimidates the person.’

In education, harassment includes bullying, intimidation, and repeated exclusionary conduct by peers, teachers or staff.

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In employment, harassment typically refers to unwelcome behaviour (such as insults, exclusion, or hostile treatment) that creates a hostile or intimidating workplace.
Across other public life contexts, harassment should be defined broadly as conduct that humiliates, offends, intimidates or disadvantages a person because of disability, with reference to both in-person and online environments.

Offensive behaviour should be defined to capture conduct that is reasonably likely, in all the circumstances, to humiliate, insult or intimidate a person with disability. The threshold should focus on conduct with a serious effect on the target, balancing free expression concerns with effective protection.

Should there be exemptions for any behaviour, similar to the Racial Discrimination Act?

Yes. To ensure political viability and protect legitimate expression, the provision should include narrow exemptions, like those in the RDA, for conduct done reasonably and in good faith, such as:

artistic or academic expression,
fair and accurate reporting, or
debate and public interest commentary.

However, exemptions must not be drafted so broadly as to undermine the protections. For example, they should not permit harassment or bullying disguised as ‘debate’ about disability rights.

To capture serious online harassment, ACDL proposes:

‘It is unlawful for a person to disseminate material through a carriage service that amounts to offensive behaviour on the basis of disability.’
‘The person must have known, or ought reasonably to have known, that the behaviour would have a serious effect on the person targeted.’

This would ensure explicit protection in cyber environments, including social media and other online spaces where people with disability are frequently targeted.

Bullying in education

Given the scale of the problem—75% of students with disability reported being bullied in the past year (CYDA, 2023)—the DDA should make explicit that bullying in educational settings constitutes harassment based on disability. This would ensure that schools and other institutions are held accountable and required to prevent and respond effectively to such conduct.

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Case study: bullying Sam, aged 13, lives with autism spectrum disorder, ADHD, and generalised anxiety disorder. When he started Year 7, his parents provided the school with a psychological report outlining recommended supports and met with staff to develop an Individual Education Plan (IEP). Despite this, no IEP was created. Instead, the school placed Sam in a Transition class and implemented a generic Learning Pathway Plan without consultation.

Sam experienced ongoing bullying from peers, which significantly increased his anxiety and led to frequent school refusal. His psychiatrist and parents recommended an attendance plan allowing him to attend every second day to help him manage his anxiety and remain engaged in learning. The school rejected this proposal and imposed a partial daily attendance plan that failed to address the underlying bullying or Sam’s wellbeing.

As a result, Sam’s attendance continued to decline, and he fell behind academically and socially, with limited support to rebuild his confidence or ensure his safety at school.

Vilification

While ACDL’s casework does not reveal widespread disability vilification complaints, there is strong justification for federal reform to prohibit disability vilification. People with disability continue to face persistent harassment and abuse—both verbal and physical—by strangers, organised groups and individuals. Although not all conduct reaches the threshold of criminal behaviour, civil vilification laws play an important role in sending a clear message that hate, hostility and intimidation directed at people with disability will not be tolerated. They also help to raise public awareness and promote cultural change.

At present, there is no federal prohibition on disability vilification, leaving significant gaps in protection. This contrasts with other areas of discrimination law (such as race) where civil and criminal vilification provisions exist.

ACDL supports amending the DDA to introduce a civil prohibition on disability vilification, consistent with Recommendation 4.30 of the Disability Royal Commission. Specifically, the Act should provide that it is unlawful for a person, otherwise than in private, to do an act if:

(a) the act involves threats to perpetrate or encourage violence or serious abuse directed at another person or group; and

(b) the act is reasonably likely, in all the circumstances, to incite hatred towards another

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person or group; and

(c) the act is done because of the disability of the person, or because some or all members of the group have (or are perceived to have) disability.

This approach would ensure that disability vilification is treated with the same seriousness as other forms of vilification, while maintaining a clear threshold that targets only serious conduct.

Adding a civil prohibition on disability vilification to the DDA would:

Close a major gap in the current federal legislative framework.
Align disability rights protections with those already available on the grounds of race.
Signal strong national leadership in upholding the rights and dignity of people with disability.

While criminal laws will continue to apply to the most serious forms of hate speech and violence, a civil prohibition is necessary to provide meaningful redress for harmful conduct that falls short of criminal liability but nonetheless undermines equality, safety and inclusion.

Coverage of policing and government agencies under the DDA

A significant omission in the DDA is that the definition of ‘services’ excludes those provided by police officers when performing their duties. This gap means that discriminatory treatment by police officers may fall outside the scope of the DDA, despite the profound impact such conduct can have on the rights, liberty and safety of people with disability.

The DRC has documented the poor experiences of people with disability in their interactions with police, including excessive use of force, failure to make reasonable adjustments, and systemic barriers to justice.[3] The DRC recommended (Recommendation 8.19) that the DDA be amended to expressly include ‘services provided by police officers in the course of performing policing duties and powers’ within the definition of ‘services’. ACDL strongly supports this reform.

Extending coverage to all Government agencies

Reforms should go further to ensure the DDA protects against discrimination by all government agencies, not just police. This should include:

Child protection authorities, where parents with disability—particularly parents—report discriminatory assumptions and treatment.

[3] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2023). Final Report - Executive Summary, Our vision for an Inclusive Australia and Recommendations. |

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Correctional agencies, where people with disability are overrepresented and face barriers to access to justice, rehabilitation and reintegration.
Courts and tribunals, where the failure to provide reasonable adjustments prevents people with disability from fully engaging in legal processes. For example, in our case work, we have witnessed failure by tribunal staff to respond to requests for adjustments, leaving individuals unable to participate fairly.

While judicial guidance such as the Equality Before the Law Bench Book sets out good practice standards for the judiciary, these are not binding. Without statutory coverage under the DDA, people with disability are left reliant on discretionary guidelines rather than enforceable rights.

Mechanism for Reform

The DDA already applies to the exercise of functions under Commonwealth law (s 29). This framework should be extended to ensure coverage of the exercise of functions under state and territory law, so that police, corrections, child protection and courts are all expressly subject to the DDA.

The DDA should be amended to:

Include policing duties within the definition of ‘services’, in line with DRC Recommendation 8.19.
Extend protections against discrimination to all government agencies, including child protection, corrections, courts and tribunals.
Ensure that discrimination protections apply to the full range of justice system interactions, including victims, witnesses, suspects, defendants and people in custody.

Such reforms would close a critical gap in the legislative framework, ensuring that people with disability are protected from discrimination at every stage of their engagement with the justice system.

How could the protections for assistance animals be clarified?

People with disability who rely on assistance animals continue to face significant barriers in public life, including being denied access to flights, taxis, ride-share services, shopping centres and accommodation. ACDL regularly receives complaints about these issues. Three common concerns arise:

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Unclear legal requirements about accreditation, training and recognition of assistance animals.
Unreasonable demands for proof, with individuals repeatedly asked to verify their disability or their need for an assistance animal.
Lack of training for service providers, particularly in transport, retail and housing, leading to discriminatory and distressing treatment.

Inconsistencies Across Jurisdictions

Accreditation systems for assistance animals differ widely between states and territories. For example:

Some schemes apply only to dogs, while others include a wider range of animals.
Some require a Public Access Test (PAT); others do not.
Accreditation may be state based, externally recognised, or non-existent.
Permit renewal processes and cross-jurisdictional recognition vary significantly.

Although the DDA permits self-training of assistance animals, people are often forced to repeatedly prove their animal’s suitability in practice. These inconsistencies create confusion, especially for people who travel interstate, and undermine confidence for both people with disability and duty holders.

Case study: accreditation evidence Maria, who lives with has diabetes, anxiety, depression, agoraphobia, and chronic back pain, relies on an assistance dog (Bertie). After purchasing an apartment in a strata complex and submitting documentation regarding the accreditation of Bertie, the strata initially raised no objection. However, they later rejected her application, citing insufficient accreditation information. Maria was separated from Bertie for months until ACDL provided clarification on the dog’s training and compliance with the DDA. She was ultimately allowed to bring Bertie into the property.

Legislative amendments and guidance

Both legislative amendments and guidance materials are needed. Legislative amendments should clarify that:

Evidence of training and behaviour must meet a nationally consistent standard.
Hygiene and suitability for public places are required but should not be used as barriers to participation.
Duty holders may request evidence only in a standardised, reasonable form.

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Guidance materials should support duty holders and the public by explaining what is required, reducing the reliance on inconsistent local rules, and preventing unnecessary exclusion.

Case study: proof of rights Elliot has C-PTSD and Borderline Personality Disorder, faced housing discrimination despite having a fully accredited assistance dog, Poppy. His letting agent and landlord demanded additional evidence and ultimately refused to renew his lease on the basis that Elliot had not submitted enough evidence proving that Poppy was an assistance animal. Following this Elliot filed a complaint with the Australian Human Rights Commission. However, due to the stress of having to find a new rental property at short notice for he and his family, Elliot withdrew the complaint.

National Assistance Animal Framework

ACDL supports the introduction of a national accreditation system, co-designed with people with disability, to provide consistency and certainty. A national framework should include:

Standardised evidence requirements across all jurisdictions.
A single, nationally recognised ID or permit confirming:
- the person’s right to use an assistance animal,
- that the animal meets training standards, and
- successful completion of a Public Access Test (PAT).
Inclusion of all types of assistance animals, not just dogs.
Clear statutory obligations on duty holders, supported by enforcement mechanisms.

Such a system would reduce discrimination, provide clarity for businesses and service providers, and empower individuals with disability to assert their rights without repeated challenges.

Training and Public Education

Systemic reform must be paired with targeted education. Many of the barriers people face stem from ignorance or prejudice, particularly from frontline staff such as security guards, taxi and ride-share drivers, and retail staff. Training should be mandated for service providers, alongside a national awareness campaign to improve public understanding of the rights of people who use assistance animals and the diversity of disabilities and animal supports.[4]

[4] Tsang MCC, Bould E, Lalor A, Callaway L. ‘Community members aren’t aware that assistance animals come in all shapes and sizes and help people with all kinds of disabilities’ - Experiences of using assistance animals within community living in Australia. Disabil Rehabil Assist Technol. 2023 Aug;18(6):942-952. doi: 10.1080/17483107.2021.1938709. Epub 2021 Jun 26. PMID: 34176422.

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Case study: public transport denial Jennifer has Complex PTSD (C-PTSD), holds a valid NSW Transport Assistance Animal Permit for her assistance dog, Misty. Despite this, she has been subjected to repeated harassment by the same bus driver while using a Transport for NSW service.

On multiple occasions, the driver has verbally ridiculed Jennifer and physically obstructed her from boarding the bus. He has referred to Misty as ‘dirty’ and falsely claimed she was not allowed on board, despite Jennifer presenting a valid permit. On at least three separate occasions, the driver attempted to remove Jennifer from the bus. He also made disparaging remarks about both Jennifer and Misty in the presence of other passengers. In two particularly distressing incidents, the driver tried to close the bus doors before Jennifer could board, further escalating her anxiety and fear.

These ongoing incidents have had a severe impact on Jennifer’s wellbeing. She now feels unsafe using public transport and has become increasingly isolated, effectively confined to her home due to fear and distress.

ACDL recommends:

Amending the DDA to require a national accreditation system for assistance animals, supported by enforceable standards and consistent evidence requirements.
Ensuring reforms balance flexibility and certainty by combining legislative amendments with clear, practical guidance for duty holders.
Clarifying the scope of evidence duty holders may request, preventing repeated or unreasonable demands.
Mandating training for service providers and introduce a national public awareness campaign.

How could compliance with and enforcement of the Disability Standards be improved?

Compliance with the Disability Standards for Education (DSE) remains weak because they largely operate as guidance rather than enforceable obligations. While the Standards were intended to clarify how the DDA applies in education, in practice they often give schools and teachers too much control over whether adjustments are provided. Provisions such as clause 3.4 and clause 10.2 effectively give respondents — the education providers — the power to decide what constitutes a ‘reasonable adjustment.’ This undermines the intent of the DDA, which is designed to

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protect students’ rights to equal access, not to reinforce institutional discretion. In practice, this means teachers and schools are left to choose what will or will not happen, leaving families with little influence over the process.

The result is that the Standards sometimes work against the DDA rather than assisting it. Instead of strengthening compliance, they create a ‘second test’ that contradicts the DDA’s framework and entrenches the power of education providers over students. Families report that schools are ‘on top of it’ — in other words, they retain most of the control over adjustments and can decline or limit them without transparent reasons or meaningful review. This systemic imbalance highlights the urgent need to either dramatically reform the DSE to align with the DDA, or risk undermining all of the broader reforms currently underway. It makes little sense to modernise the DDA while leaving the Standards in their current, flawed form.

To improve compliance, the DSE must move beyond illustrative examples and set clear, enforceable minimum requirements. This should include statutory timeframes for responding to adjustment requests, mandatory principles for consultation with students and families, requirements for behaviour support planning before suspensions or expulsions, and obligations to ensure continuity of adjustments when students move into new contexts such as examinations, placements or accreditation processes. These reforms would reduce arbitrary decision-making, make responsibilities clearer, and provide greater certainty for both students and providers.

Enforcement must also be modernized. At present, compliance depends almost entirely on individuals pursuing complaints through the Australian Human Rights Commission. This reactive, adversarial model is intimidating and inaccessible. A more effective system would include proactive oversight and monitoring, with the Commission empowered to conduct audits, issue compliance notices, accept enforceable undertakings and apply sanctions for systemic breaches. Linking government funding to compliance with the Standards would further drive accountability across the sector.

Transparency is also critical. Education providers should be required to publicly report on their handling of adjustment requests, exclusions, complaints and response times. A nationally published dashboard of this data would promote accountability, highlight systemic gaps, and help target resources where they are most needed.

Finally, reform must invest in building capacity. Teachers, principals, exam authorities and placement hosts need training, model policies, and practical toolkits to support compliance.

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Students and families need accessible information about their rights and straightforward pathways to resolve disputes early, without the need for formal complaints.

In short, the Standards need to be either fundamentally reformed or replaced. Strengthening the DDA alone will not deliver real change if the Standards continue to give providers broad discretion and weaken accountability. Only by making the DSE enforceable, consistent with the DDA, and supported by monitoring, reporting and training will students with disability have genuine access to inclusive education on the same basis as their peers.

For further information on this submission, please contact:

Mark Patrick

Principal Solicitor T: redacted

E: redacted