Discrimination and segregation of a child with Down syndrome in mainstream school

Submission to the Disability Discrimination Act 1992 Review

From: Parent of an 12 year old child with disability ( )

Introduction

I make this submission as the parent of a 12-year-old child with Down syndrome who has experienced extensive, ongoing discrimination in a mainstream public school. My son, is a bright, capable, gentle boy who has repeatedly been denied access to education, excluded from participation, segregated from peers, and refused reasonable adjustments that are essential for him to learn on an equal basis with others.

Over the last 4 years we gave made various complaints to the Department of Education, escalated to the Ombudsman and now even progressed to the Human Rights Commission. The process has been gruelling, time consuming, frustrating and has taken an immense toll on our family with little reward. Despite our obvious attempts at advocacy and need for change we were unaware of the 2025 review of the Disability Discrimination Act until now when we researched for more avenues. As obvious stakeholders having made many complaints to the Department of Education, Ombudsman, Human Rights Commission and my son being an NDIS recipient we feel there could have been some direct communication regarding this review. Please accept this submission as my son’s educational experience is a testament to what needs to be changed in the Disability Discrimination Act and will provide great insight.

experiences are not isolated incidents. They reflect systemic failures in the current Disability Discrimination Act 1992 (DDA), the Disability Standards for Education 2005, and the broader culture within educational settings. The existing legal framework has not been sufficient to prevent discrimination, nor has it provided timely or effective remedies.

This submission responds to the consultation questions most relevant to lived experience, including:

• Definitions of discrimination
• Reasonable adjustments
• Unjustifiable hardship
• Positive duty
• Education discrimination
• Suspension/exclusion
• Access to justice

story demonstrates why the DDA must be strengthened, modernised, and enforced with far greater clarity and accountability.

Story: A Case Study in Systemic Discrimination

is an 12-year-old boy with Down syndrome who attends a mainstream public school. He is verbal, literate, numerate, and capable of learning the same curriculum as his peers when given appropriate support and time. Despite this, he has been subjected to years of exclusion, segregation, and discriminatory assumptions about his abilities.

1. Segregation and isolation For years, was placed in a separate side room, away from his classmates, unable to see the board, and denied access to teaching. This occurred daily for at least three terms, and likely longer. He was also routinely placed in a “puzzle corner” to occupy him instead of being taught, and segregated into a “supported play area” at recess and lunch despite wanting to play with peers.

2. Denial of access to the curriculum has been consistently denied access to Stage-appropriate content. He has been withdrawn from class during literacy and numeracy, given kindergarten-level reading materials despite demonstrated higher ability, and provided an Individual Education Plan (IEP) that restricts rather than expands his access to the curriculum.

His English book for an entire term contained only one sentence. His mathematics book was withheld from viewing. This is not education but neglect.

3. Failure to provide reasonable adjustments Despite medical, allied health, and educational evidence supporting the need for additional time, the school and Department refused the reasonable adjustment of grade repetition. This refusal has compounded years of lost learning caused by the school’s own discriminatory practices.

The school has also repeatedly removed supports without consultation, including communication tools, access to teachers, and one-to-one learning support.

4. Exclusion from participation has been excluded from sports trials, discouraged from cross-country participation, and denied entry to athletics carnivals unless he “proved” he could run, a requirement imposed on no other child.

5. Unsafe and harmful practices has been physically restrained, dragged, and lifted by staff. He was subjected to the “bubblegum protocol,” where all children were instructed to leave the room, isolating him alone, a practice identified by his psychologist as traumatising.

He has also been left unsupervised to the point of leaving school grounds and crossing a busy road alone.

6. Lack of accountability Despite repeated complaints, documentation, and requests for transparency, the school and Department have not acknowledged the harm caused, nor provided remedies, nor implemented meaningful change.

Why this matters for the DDA Review

experience demonstrates that:

• The current definitions of discrimination are too narrow and too difficult to prove.

• Reasonable adjustments are not enforced, and delays cause irreversible harm.

• There is no positive duty requiring schools to prevent discrimination.

• The Disability Standards for Education lack enforceability and consequences. The review of the Disability Standards for Education is also flawed as it is being reviewed by the Department of Education itself.

• Families face power imbalances, delays, and barriers to justice.

• Children with disability remain vulnerable to exclusion, segregation, and neglect. The DDA must be strengthened so that what happened to cannot continue happening to him and other children.

1. Updating understandings of disability and discrimination 1.1 Definition of disability

Consultation focus: Whether the definition of disability in the DDA remains fit-for-purpose.

Response

The current definition of disability is broad, but in practice it is interpreted inconsistently across education settings. experience demonstrates that schools often rely on outdated, deficit-based assumptions about disability, particularly intellectual disability, to justify segregation, reduced expectations, and exclusion.

Despite being in the top 1% of cognitive ability for children with Down syndrome, has been treated as incapable of accessing the mainstream curriculum. His disability has been used as a blanket justification for:

• denying him access to Stage-appropriate content
• restricting him to kindergarten and Stage 1 and 2 level materials
• segregating him physically and socially
• refusing reasonable adjustments
• lowering expectations through a narrow, limiting IEP This shows that the definition of disability must be strengthened to:

Recommendations

• Explicitly recognise that disability includes variability of ability and potential, and that assumptions about capacity constitute discrimination.

• Clarify that disability must never be used as a justification for reduced access to curriculum, participation, or expectations.

• Require decision-makers to consider the individual child, not stereotypes associated with a diagnosis.

1.2 Direct discrimination (Rec 4.23)

Response

The current definition of direct discrimination is too narrow and too difficult to prove, especially in education where discriminatory decisions are often disguised as “support”.

experienced clear direct discrimination, including:

• being placed in a separate room for most of a year
• being excluded from sports unless he “proved” he could run
• being discouraged from participating in cross-country
• being denied access to mainstream curriculum
• being physically restrained and subjected to harmful protocols
• being told he should attend a special school despite capability These actions were taken because of his disability, yet under the current DDA, schools can easily claim they were “support strategies”.

Recommendations

• Amend the definition to include discriminatory assumptions, stereotypes, and paternalistic decisions.

• Clarify that segregation, exclusion, and reduced curriculum access are forms of direct discrimination

• Shift the burden of proof so that once a parent shows differential treatment, the school must justify it.

1.3 Indirect discrimination (Rec 4.24)

Response

Indirect discrimination is widespread in education but extremely difficult for families to challenge. experienced indirect discrimination through:

• withdrawal from class during core learning
• restrictive communication policies
• discouraging participation in school events
• requiring “proof” of ability
• limiting IEP goals to early-stage content
• removing supports without consultation
• placing him in a “supported play area” instead of the playground These conditions appear neutral but disproportionately disadvantage children with disability.

Recommendations

• Clarify that any policy or practice that results in reduced access to learning, participation, or supervision is likely to be indirectly discriminatory.

• Require schools to demonstrate that any condition is reasonable, evidence-based, and the least restrictive option.

• Explicitly include “failure to provide adequate supervision” as a form of indirect discrimination.

2. Reasonable adjustments (Rec 4.25, 4.26)

Response

The duty to provide reasonable adjustments is one of the most important protections in the DDA, yet it is routinely ignored, delayed, or interpreted narrowly.

experience shows systemic failure:

• The school refused the reasonable adjustment of grade repetition despite overwhelming medical and allied health evidence.

• Adjustments were removed without consultation (communication book, teacher access, learning support).

• Adjustments were not reviewed despite clear changes in need.

• The school delayed decisions until the adjustment was no longer feasible.

• The Department maximised response time, causing irreversible harm. Under the current framework, there are no consequences for failing to provide adjustments or for delaying them.

Recommendations

• Introduce a statutory requirement that adjustments must be provided within a reasonable timeframe (e.g., 30 days).

• Make consultation mandatory and enforceable, with penalties for unilateral removal of supports.

• Clarify that “more time”, including grade repetition is a legitimate reasonable adjustment.

• Require schools to document reasons for refusing adjustments and provide evidence.

• Shift the burden of proof: if an adjustment is recommended by qualified professionals, the school must justify refusal.

3. Unjustifiable hardship (Rec 4.32)

Response

The unjustifiable hardship test is frequently misused by schools to avoid providing adjustments. In case, the school repeatedly claimed that adjustments were unnecessary or implied they were burdensome, despite:

• repetition posing no hardship
• curriculum access requiring no additional resources
• supervision being a basic duty of care
• inclusion in sports requiring no cost
• seating him appropriately requiring no resources

The current test allows schools to rely on vague assertions rather than evidence.

Recommendations

• Require schools to provide written, evidence-based justification when claiming hardship.

• Clarify that hardship cannot be claimed for: o curriculum access o supervision o participation in school activities o consultation o non-resource-intensive adjustments

• Prohibit hardship claims where the school’s own discriminatory conduct created the need for the adjustment.

4. Positive duty (Rec 4.27, 4.28)

Response

A positive duty is essential. experience shows that without a proactive obligation, discrimination becomes normalised and entrenched.

If a positive duty existed, the school would have been required to:

• prevent segregation
• ensure curriculum access
• monitor supervision
• prevent harmful restraint practices
• ensure participation in school life
• review adjustments regularly
• consult with parents
• prevent discriminatory policies Instead, the burden fell entirely on the family to identify, document, and challenge discrimination — often after harm had already occurred.

Recommendations

• Introduce a positive duty requiring schools to take reasonable and proportionate steps to eliminate discrimination, harassment, and exclusion.

• Require annual reporting on compliance.

• Enable the Australian Human Rights Commission to conduct audits, issue compliance notices and impose penalties for breaking the law.

5. Education discrimination (Rec 7.2)

Response

case demonstrates systemic discrimination in education:

• Segregation
• Withdrawal from class
• Denial of curriculum access
• Exclusion from participation
• Unsafe supervision
• Harmful behaviour protocols
• Restrictive communication policies
• Removal of supports
• Failure to provide adjustments These practices breach both the DDA and the Disability Standards, yet there are no practical consequences for schools.

Recommendations

• Make the Disability Standards enforceable with penalties for non-compliance.

• The Disability Standards for Education should be reviewed by an independent party.

• Prohibit segregation unless requested by the family and supported by evidence.

• Require schools to demonstrate that withdrawal from class is educationally justified and time-limited.

• Prohibit harmful behaviour protocols such as isolating a child alone.

• Require transparent documentation of all incidents involving restraint or seclusion.

6. Access to justice

Response

Families face enormous barriers in seeking justice:

• Delays in school and Department responses
• Lack of transparency
• Power imbalance
• Emotional and administrative burden
• Difficulty proving discrimination
• Lack of enforceability of the Standards
• No consequences for non-compliance case required years of documentation, repeated complaints, and escalating advocacy, all while discrimination continued.

Recommendations

• Introduce fast-track processes for urgent education matters.
• Allow interim orders to prevent ongoing harm.
• Enable the AHRC to compel information from schools.
• Provide legal assistance for families.
• Introduce civil penalties for serious or repeated discrimination.

7. Modernising the DDA — Disability Standards

Response

The Disability Standards for Education are currently unenforceable in practice. Schools can breach them repeatedly without consequence.

experience shows:

• failure to consult
• failure to review adjustments
• failure to provide curriculum access
• failure to supervise

• failure to provide reasonable adjustments
• failure to prevent discrimination All of these are breaches of the Standards, yet there is no mechanism to enforce compliance.

Recommendations

• Make the Standards enforceable with penalties.
• Require schools to publish annual compliance statements.
• Introduce mandatory training for all school staff.
• Require independent monitoring of restraint, seclusion, and segregation. Conclusion and Call to Action

story is not an anomaly, it is a symptom of systemic failure. The Disability Discrimination Act 1992, in its current form, has not been sufficient to protect him from discrimination, exclusion, and harm. The Disability Standards for Education, while well-intentioned, have proven unenforceable in practice. Families like mine are left to fight, document, escalate, and plead for basic rights that should never be negotiable.

My son has lost years of education, confidence, and wellbeing because the law allowed a school and a Department to act without accountability. He has been segregated, denied curriculum access, excluded from participation, subjected to harmful practices, and refused reasonable adjustments, all while the existing legal framework offered no timely remedy.

The DDA must be strengthened so that no child experiences what has endured.

What experience shows

• Discrimination can occur daily, quietly, and under the guise of “support”.
• Reasonable adjustments can be delayed until they are meaningless.
• Segregation can be normalised and justified without evidence.
• Curriculum access can be denied without consequence.
• Harmful practices can be implemented without oversight.
• Families carry the burden of proof, documentation, and advocacy.
• The Disability Standards lack enforceability, monitoring, and teeth.
• Schools can breach the law repeatedly without penalty.

This is not equality. This is not inclusion. This is not what the DDA was intended to protect.

What must change

To prevent further harm to children like the DDA must be modernised to:

• Introduce a positive duty requiring schools to proactively prevent discrimination.

• Strengthen the definitions of direct and indirect discrimination to capture harmful assumptions and exclusionary practices.

• Make reasonable adjustments enforceable, timely, and subject to oversight.

• Clarify and narrow the unjustifiable hardship defence so it cannot be misused. In particular, be specific with amounts quantifying financial hardship particularly for large organisations like the Department of Education. Considering resources, financial hardship should be rare.

• Make the Disability Standards enforceable, with real consequences for non-compliance.

• Ensure access to justice is timely, transparent, and accessible for families.

• Require consultation, documentation, and accountability for all decisions affecting students with disability.

• Prohibit segregation, harmful behaviour protocols, and unjustified withdrawal from class.

These reforms are not optional, they are essential.

A final message

is a capable, bright, gentle boy who wants to learn, participate, and belong. He deserves the same opportunities as every other child. He deserves a school system that sees his potential, not his diagnosis. He deserves laws that protect him, not frameworks that allow discrimination to continue unchecked.

I make this submission not only for my son, but for every child with disability whose voice is unheard, whose potential is underestimated, and whose rights are too easily dismissed.

Kind Regards,

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