Submission to the Disability Discrimination Act (DDA) Review — Parents of Deaf Children (PODC)

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Submission to the Disability

Discrimination Act (DDA)

Review — Parents of Deaf

Children (PODC)

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About Parents of Deaf Children (PODC)

Parents of Deaf Children (PODC) is a not-for-profit, Parent-led organisation with over 60 years of history supporting families across New South Wales and beyond. We are the longest-standing parent organisation in Australia dedicated to ensuring that children who are Deaf or hard of hearing (DHH) - and their families - have access to the information, services, and rights they need to thrive.

Founded on the principle that families should never walk alone, PODC knows first-hand the challenges parents face when navigating early intervention, education, and disability support systems. Too often, parents receive incomplete or biased information or are left to fight for their child’s communication, education, and inclusion. PODC provides guidance, peer connection, and advocacy so that families can make informed choices and secure the supports their children need.

Why our voice matters: Families are often the first and most persistent advocates for their children. When systems fail to provide equitable access to communication or education, it is parents who bear the burden - financially, emotionally, and socially. We have seen time and again how gaps in legislation, policy, and practice create lifelong consequences when language and access are denied.

For this reason, PODC brings a unique and critical perspective to the DDA Review: we speak with the voice of families, ensuring that children’s rights to language, access, and inclusion are not overlooked in law reform.

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PODC’s advocacy is guided by three core principles:

Equality of opportunity: Children and families must be able to participate on an equal basis with their peers. Equality is not about “fitting in” to existing systems — it is about reshaping systems so they are genuinely inclusive from the start.

Inclusion with belonging: Inclusion means more than mere physical presence in a classroom or service. True inclusion is about belonging - being able to connect, communicate, and contribute in ways that reflect one’s identity and strengths.

Language rights and communication access: Access to language is ahuman right. For DHH children, that means timely access to Auslan and other preferred communication modes. Families should never have to fight to prove this. The DDA must explicitly protect the right to communication and language access.

Why does the DDA review matter to our families? For too long, the DDA has been treated as a reactive shield - something families invoke only afterharm has occurred. PODC believes this review must transform the Act into a proactive driver of rights and inclusion, ensuring that communication access and language rights are treated as fundamental, enforceable obligations rather than discretionary adjustments. Our vision is a DDA that:

• Embeds positive duties on governments, schools, and services (so inclusion is proactive).

• Recognises Auslan and sign language rights as core human rights. « Delivers national consistency, so rights don’t depend on a child’s postcode or school type.

• Provides accessible pathways to justice for children, families, and communities when rights are breached.

By aligning the DDA with the CRPD and the lived experiences of families, Australia can move from a framework that only reacts to discrimination afterthe fact to one that ensures equality, inclusion, and language access from the start.

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1. Definitions and Interpretation The DDA’s definitions and interpretive framework set the foundation for how disability rights are understood and enforced. Currently, these definitions are outdated and narrow. They do not reflect contemporary understandings of disability as a matter of human rights, identity, and diversity. Reforms are needed to modernise the language of the Act and ensure it captures key concepts like communication rights and intersectional discrimination.

1.1 Modernising the definition of “disability”

The DDA’s current definition of disability relies on medical, deficit-focused terms describing disability in terms like “malfunction,” “disorder,” “disfigurement,” or “disturbance.” This framing is inconsistent with the CRPD’s human rights model, which views disability as an interaction between impairment and systemic barriers rather than a personal defect. Outdated definitions have real consequences: for example, families of DHH children report that the medicalized view (e.g. assuming a cochlear implant “fixes” deafness) leads some service providers to treat supports like Auslan or interpreters as optional extras instead of essential rights.

Recommendation - Update the definition: Amend the DDA’s definition of disability to align with the CRPD by: « Replacing the current deficit-based definition with language that recognises disability as

part of human diversity (emphasizing societal barriers rather than “defects” in the person).

« Removing derogatory or outdated terms (such as “impairment”, “deformity” or “disturbance of behavior”).

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1.2 Intersectionality and compounded discrimination

The DDA does not yet adequately address intersectional discrimination - situations where multiple aspects of a person’s identity (disability, race, gender, Indigeneity, etc.) combine to

create unique and compounded disadvantages. In practice, many DHH children and their

families experience intersectionality every day:

First Nations families: Aboriginal and Torres Strait Islander children have higher rates of hearing loss, often compounded by systemic racism and barriers to services in rural and remote communities.

Culturally and Linguistically Diverse (CALD) Deaf communities: DHH children from immigrant or non-English speaking backgrounds face exclusion not only due to disability but also because Auslan is not always recognised or supported as a legitimate language in their education and community services.

Gender and disability: DHH girls and young women face intersecting risks — for instance, the Disability Royal Commission identified that women and girls with disability are at higher risk of violence and abuse, and deafness can exacerbate barriers to reporting or getting support.

Recommendation - Prohibit intersectional discrimination: Amend the DDA to explicitly

prohibit discrimination on the basis of combined or intersectional attributes. The law should

clarify that discrimination can occur due to the intersection of disability with other factors

(such as race or gender), and provide guidance for courts and regulators on recognizing and

addressing these compounded forms of discrimination. Additionally, monitoring and

reporting mechanisms should collect data on multiple discrimination, so policies can

respond to those most at risk of falling through the cracks.

1.3 Strengthening tests for direct and indirect discrimination

Enforcing rights under the DDA is often hindered by technical legal tests. Currently, to prove direct discrimination, a person with disability must show they were treated less favorably than someone without disability in the same circumstances (the “comparator test”). For indirect discrimination, a person must show they were disadvantaged by a neutral rule or policy and that the required adjustment was “reasonable.” These requirements set a high bar and shift focus away from the real issue - whether the person was denied equal access.

Families have consistently told PODC that these hurdles make it nearly impossible to challenge discriminatory treatment. In education, for example, schools can defend denying an interpreter or not providing captions by claiming such supports are not “reasonable” or by arguing a hypothetical student without disability would also be excluded - rather than focusing on what the child actually needs to participate.

Recommendation - Remove unfair barriers in discrimination tests: Reform the DDA’s liability tests to make them fair and focused on inclusion:

• Eliminate the comparator test for direct discrimination. If a person with disability is treated poorly because of disability, that should be enough - they shouldn’t need to find a comparison to a person without disability.

« Replace the vague “reasonableness” test in indirect discrimination with a clear duty to make necessary adjustments, limited only bya narrow definition of unjustifiable hardship (see below). This shifts the presumption in favor of providing accommodations unless doing so would truly be unjustifiable.

• Clarify that failing to provide a needed reasonable accommodation js discrimination. The DDA should state (consistent with CRPD Article 2) that when an adjustment is required for equal access, not providing it is unlawful discrimination in itself.

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1.4 Clarifying “unjustifiable hardship”

The DDA allows duty-bearers (like schools or businesses) to refuse an accommodation if it would impose an “unjustifiable hardship.” In practice, this exception is often misused or over-claimed. Families of DHH children are frequently told that providing an Auslan interpreter, real-time captions, or certain assistive technologies would cause “unjustifiable hardship” - even when dealing with large, well-funded institutions such as public school systems or hospitals.

Using cost or inconvenience as an excuse to deny fundamental access undermines the principle of equality. Access to communication is not a luxury - it is a fundamental right. The burden of justifying a refusal to accommodate should be high, and the criteria clear.

Recommendation - Narrow and define the hardship defense: The DDA should strictly define what counts as “unjustifiable hardship,” considering factors such as:

« Resources of the provider: The overall size, budget, and resources of the school, business, or service (a well-resourced entity should be expected to do more to accommodate than a very small one).

« Essential benefit of the adjustment: How critical the requested adjustment is to the person’s equal participation. (For example, providing an interpreter to a DHH child is fundamental to their education - not a minor amenity.)

• Long-term benefits: The broader social/economic benefits of inclusion, which often outweigh immediate costs (e.g. investing in Auslan access leads to better educational and employment outcomes, reducing costs elsewhere).

The law should also require transparency whenever unjustifiable hardship is claimed. Organizations denying an accommodation on this basis should have to document and report why they believe the burden is unjustifiable, subject to oversight by the Australian Human Rights Commission (AHRC). This would discourage misuse of the defense and allow for independent scrutiny.

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1.5 Recognising Auslan and Deaf culture as part of Australia’s diversity

Crucially, the DDA should acknowledge that the Deaf community is not only a disability group but also a cultural and linguistic minority. Auslan (Australian Sign Language) is the native language of the Australian Deaf community, and Deaf culture - with its own history and traditions - is a vibrant part of our society’s diversity. Internationally, this is well recognised: the CRPD explicitly references the “linguistic identity of the Deaf community”, and the World Federation of the Deaf advocates recognition of sign languages as equal to spoken languages.

Yet the DDA to date has framed deafness almost entirely through a medical lens, with no mention of Auslan or Deaf culture. This lack of recognition has tangible consequences. For instance, Deaf people are often overlooked in multicultural policy and funding, even though they form a distinct linguistic minority. In education, Auslan may not be treated as a legitimate language of instruction, leading to systemic language deprivation for DHH students. Families report being pressured into “speech only” pathways for their child, as services downplay Auslan or treat it as a last resort - which denies children exposure to their natural language and Deaf identity.

Recommendation - Embed recognition of sign language rights: Amend the DDA (for example, in the Act’s objects or interpretation sections) to:

• Recognise Auslan (and other sign languages used in Australia) as languages of equal standing. This symbolic and legal recognition would affirm that providing access in Auslan is just as important as providing access in English.

• Acknowledge the Deaf community as a cultural and linguistic minority within Australia. The Act should reflect that measures which support Auslan acquisition, Deaf culture, and identity (such as bilingual education programs, availability of accredited

interpreters, and Deaf leadership in service design) are part of fulfilling disability rights.

By affirming Auslan and Deaf culture in the DDA, Australia will align with its CRPD obligations

and send a powerful message that being DHH is not “less than” - it is a valued part of human

diversity. This change would help shift practice away from trying only to “fix” deafness and

toward ensuring full inclusion of Deaf people in both the disability community and the

broader cultural fabric.

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2. Positive Duty to Eliminate Discrimination One of the most significant limitations of the current DDA is that it remains reactive, not proactive. The law primarily relies on individuals - often children or their parents - to recognize discrimination and then initiate a complaint afterthey have already suffered harm. This model places an unfair burden on those who are already disadvantaged, and it fails to prevent systemic discrimination before it occurs.

The recent Disability Royal Commission heard that many families do not pursue formal complaints at all. The processes are seen as too complex, too slow, and too traumatic, with little chance of success. As a result, widespread discrimination continues unchecked, and families shoulder the cost of exclusion. By contrast, other areas of Australian law (such as workplace health and safety, and recent reforms in sex discrimination law) impose positive duties: proactive obligations on duty-holders to prevent harm before anyone has to complain.

For families of DHH children, the absence of a positive duty means:

• Parents must continually advocate school by school, service by service, for basic supports like Auslan interpreters, captions, or visual alert systems.

¢ Hospitals and public services often do not provide interpreters until a family insists sometimes even expecting children or relatives to interpret in critical situations, which is unsafe and inappropriate.

• Too often, adjustments (hearing assistive technology, captioned media, etc.) are treated as optional extras rather than automatically provided accommodations.

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This Review is an opportunity to change that dynamic. Introducing a positive duty in the DDA would fundamentally shift responsibility onto the institutions and providers (schools, employers, governments, businesses) to proactively identify and eliminate barriers.

A positive duty would bring several benefits:

¢ Shift the burden off families: It makes inclusion the responsibility of schools, services, and employers - they must anticipate needs and remove barriers, instead of waiting for parents to complain.

• Create aculture of compliance: Duty-holders would need to build accessibility and inclusion into their planning and everyday decision-making, rather than seeing accommodations as ad hoc or exceptional.

• Enable systemic enforcement: Regulators could investigate and address patterns of discrimination without needing an individual complainant for every issue, allowing systemic problems (like a school system failing DHH students ) to be tackled directly.

Recommendation - Amend the DDA to include a Positive Duty:

« Introduce a positive duty on a// public and private entities covered by the DDA (schools, workplaces, service providers, government agencies) to take reasonable steps to eliminate discrimination and promote equality. This duty should apply across all areas of life the Act covers.

• Empower the Australian Human Rights Commission (AHRC) (or another regulator) with strong compliance and enforcement powers to support this duty, including:

° the ability to conduct own-motion investigations into organisations or sectors (without waiting for a complaint),

° issuing compliance notices or directives requiring discriminatory practices to be corrected,

° accepting enforceable undertakings (binding commitments to change practices), and ° seeking civil penalties for systemic or serious breaches of the duty.

« Require duty-holders to actively demonstrate compliance. For example, larger organisations and government agencies should develop and publish Disability Action Plans, report on the accessibility measures they have in place, and undergo periodic audits or reviews of their inclusion practices.

¢ Ensure the duty is comprehensive in scope. It should cover education, health, employment, justice, housing, digital environments, and all other domains addressed by the DDA. No area should be exempt from the obligation to foster inclusion.

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(Example: A profoundly Deaf student attends a mainstream school where assemblies, school

plays, and excursions have never been made accessible. Currently, the family would have to lodge complaints and fight for interpreters or captioning for each activity. Under a positive duty, the school would be obligated to anticipate the student’s communication needs and provide interpreters/captions as a matter of course. An education regulator or the AHRC could step in to ensure the school complies, rather than the family having to push for each adjustment.)

Implementing a positive duty in the DDA would also fulfill Australia’s international commitments - for instance, CRPD Article 5 (equality and non-discrimination), Article 9 (accessibility), and Article 24 (education) all require states to take proactive steps to eliminate discrimination and ensure access. In short, this is arguably the single most important reform to move the DDA from a last-resort shield to a forward-looking tool that prevents harm. It would ensure that families no longer have to carry the entire burden of securing their children’s rights, and that equality and access are built into systems by default.

3. Strengthening Duties to Accommodate - “Reasonable Adjustments” and

Communication Access

The duty of schools, employers, and service providers to provide reasonable adjustments (accommodations) is central to making the DDA’s promise real. However, in practice families report that this duty is often interpreted narrowly or ignored, leaving DHH children without the supports they need. The very term “reasonable” can be used to minimize what is provided. This section outlines how the DDA can be strengthened to ensure needed adjustments are provided as a matter of obligation, and that communication access - the most critical adjustment for DHH children - is recognized as a right, not an optional extra.

3.1 Making “reasonable adjustments” a clear, enforceable duty

Under the current DDA, providers are required to make “reasonable” adjustments for a person with disability, up to the point of unjustifiable hardship. In practice, this standard is too vague and discretionary:

« Schools and service providers often argue that certain supports are not “reasonable” for them to provide, effectively denying the student or client equal access.

¢ Families are frequently told that an adjustment is too costly, not necessary, or only needed for “one child” - implying that inclusion is a favor rather than a duty.

• Because the law doesn’t spell out exactly what must be done, parents often feel powerless to challenge a school or provider who insists they have done “enough.”

Recommendation - Strengthen the adjustment obligation: The DDA should explicitly state that duty-holders have a clear duty to provide necessary adjustments for people with disability, subject only to the narrow exception of unjustifiable hardship (redefined as per Section 4.4). In other words, if an accommodation is needed for a person to have equal opportunity, the default expectation is that it will be provided. To support this:

« TheAct should make clear that failure to provide an available and needed adjustment is unlawful discrimination (reinforcing that omission can be as discriminatory as an overt act, in line with CRPD Article 2’s concept of denial of reasonable accommodation).

• Providers should be required to consult with the individual (or their family) about what adjustments are needed. Too often, decisions are made about a child’s needs without properly involving the family or the child, leading to inadequate or inappropriate supports.

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3.2 Recognising communication and language access as a right

For DHH children, the single most important “adjustment” is access to communication - yet this is the very support that is most frequently contested. Families consistently report scenarios like:

• Inschools: school leadership resist providing Auslan interpreters or captioning for a DHH student until parents escalate the issue, sometimes through legal channels.

• Inhospitals: Instead of booking qualified Auslan interpreters, staff rely on the child or family members to interpret medical information, or claim no interpreter is available on short notice - even though 24/7 interpreting services exist.

« Inearly intervention: Parents are often steered toward spoken-language-only programs, with Auslan tuition offered only as a “last resort” or not at all, limiting the child’s early language exposure.

The result of treating communication supports as optional is language deprivation and exclusion. DHH children denied timely access to sign language, captions, or other communication modes can experience delays in cognitive development, academic setbacks, and isolation from peers and family. This is entirely preventable.

PODC urges that the DDA be amended to explicitly affirm the right to communication and language access as a key aspect of disability rights. In practice, this means the law (and its Standards) should guarantee that:

• Qualified interpreters (in Auslan or other appropriate sign languages) are provided in any essential setting - including schools and universities, hospitals and health care, courts and police interactions, workplaces, and government services - whenever needed for effective communication.

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« Accessible formats are provided across all services, including real-time captioning, transcripts, assistive listening systems, Easy Read and plain-English materials, and accessible digital content. (For example, public videos or announcements must have captions; important documents should be available in easy-to-understand formats.)

• Proactive planning for communication access is required. Schools, employers, and service providers should not wait until a DHH person complains to start figuring out communication supports. Instead, planning for potential communication needs should be part of standard practice (for instance, a school should anticipate that it might enroll DHH students and have a plan for providing Auslan or captioning from day one).

The true test of the DDA is how it affects a child’s daily life. For a DHH student, the absence of timely supports means sitting in classrooms where lessons pass by without understanding, missing the jokes and conversations that bond peers, and watching assemblies or performances unfold in silence. For parents, it means sleepless nights spent drafting letters and funding stop-gap solutions while their child falls further behind. These are not abstract legal issues - they are lived experiences with lifelong consequences. A reformed DDA must ensure that no child grows up excluded from language, learning, or belonging.

(We discuss in Section below our proposal for anew Communication and Language Access Standard under the DDA, which would comprehensively address these obligations.)

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3.3 Ensuring timely adjustments - preventing “preventable harm”

Even when adjustments are eventually provided, lengthy delays can themselves cause irreparable harm - especially for young children in critical developmental stages. Without a clear requirement in the DDA for timeliness, families often endure drawn-out battles while their children languish without support. During these delays:

« Children are left without full access to language and information in classrooms, leading to learning gaps that should never have occurred.

• Families experience immense stress, “advocacy fatigue,” and financial costs (e.g. paying for stop-gap solutions or private services) as they push for basic accommodations.

« DHH children miss out on social interactions - they might be sidelined during school assemblies, extracurricular activities, or playtime due to communication barriers causing isolation and emotional harm.

• Crucial developmental windows are lost. Especially for language acquisition in early childhood, delays of months or years can have lifelong consequences that cannot be fully remedied later on.

The Royal Commission and numerous inquiries have recognized that such delays in providing support amount to a form of preventable harm. As one parent described it, “By the time we finally got Auslan support, the critical window for language had closed - that harm can never be undone.”

Recommendation - Embed a duty of timeliness and early intervention: The DDA should require that adjustments be provided in a timely manner, particularly when needed to avoid developmental harm to a child. In practice, this could involve:

« Empowering the AHRC or regulator to intervene quickly if a complaint or situation indicates a child is being denied an essential support. Rather than waiting months for a conciliation to play out while a child suffers, the regulator should be able to issue an interim direction or take other rapid action to get the adjustment in place.

« Mandating urgency for children’s cases: Decision-makers (courts, tribunals, school authorities, etc.) should be required to consider the child’s developmental urgency when assessing what is reasonable or whether an adjustment can be delayed. For example, a school shouldn’t be allowed to argue it will provide an interpreter “next year” - a year of lost education is not acceptable.

« Recognising communication delays as serious harm: The law should explicitly acknowledge that denial or delay of communication access (like Auslan or captioning) is a significant harm. This underscores that dragging out the provision of such supports is not a trivial matter - it infringes on the child’s right to equality and can cause long-term damage. rey,

4. Strengthening Key Protections in Specific Areas While the DDA nominally provides protection against disability discrimination in employment, education, and service delivery, in practice there are gaps and weaknesses that particularly affect DHH children and their families. This section highlights several domain-specific reforms - including tightening certain legal defenses and removing exemptions that leave some individuals unprotected.

4.1 Employment - the “inherent requirements” defense

In employment, the DDA allows an employer to refuse to hire (or to dismiss) a person with disability if the person cannot perform the “inherent requirements” of the job, even with reasonable adjustments. This provision is meant to be a narrow Safety valve, but it is sometimes misused to screen out capable DHH applicants without proper consideration of accommodations. For example, employers might assume that a DHH candidate cannot fulfill a role that involves communication or phone work - ignoring the fact that with Auslan interpreters, captioned telephone services, or other technology, the person could perform the role’s essential functions.

Recommendation - Narrow the inherent requirements exemption: The DDA and guidance should be clarified to ensure:

« Employers must genuinely consider and provide reasonable adjustments before claiming a person cannot meet inherent job requirements. They should not simply assume a DHH person is incapable without exploring accommodations.

« Refusing to hire or promote someone solely because they require Auslan interpreters, captioning, assistive technology, or other supports should be deemed unlawful. Needing these supports does not make one unable to perform a job’s inherent tasks.

• Employers should consult with the person with disability about what adjustments would enable them to do the job, rather than making unilateral assumptions. This echoes the positive duty to accommodate - the focus should be on howthe person can do the job with support, not whether they can do it without support.

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4.2 Education - making inclusion enforceable (and ending school exemptions)

The Disability Standards for Education (2005) under the DDA set out how schools and universities must support students with disability. However, these standards have fallen

short for DHH students. Families report that:

Communication supports are inconsistent. Some students receive Auslan interpreters or captioning in class, while others in similar situations do not, often depending on the school or local education authority’s approach and resources.

Specialist support is lacking. Teachers of the Deaf/Itinerant teachers are often stretched across multiple schools and cannot provide sufficient attention to each DHH student. Key supports like note-takers or Auslan language models are rarely available.

Exclusions and suspensions hit disabled students harder. When DHH students’ communication needs are unmet, they can become disengaged or misunderstood, contributing to higher rates of disciplinary action. (Indeed, nationally students with disability are over-represented in suspensions.)

Gaps for private education. In some jurisdictions (e.g. New South Wales), anti discrimination laws still exempt private schools from having to fully comply with disability discrimination protections. This means a private school can legally decline to enroll or accommodate a student with disability - an option public schools do not have.

These realities show that inclusive education is not yet guaranteed. The DDA Review must

strengthen both the Standards and the primary Act to ensure equal educational

opportunities.

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Recommendation - Strengthen disability education obligations:

Remove any loopholes or exemptions that allow schools to turn away or underserve students with disability. All schools - government, independent, and faith-based should have the same duty to enroll and accommodate DHH students. Families should not have to avoid certain schools due to weaker legal obligations. The DDA (using the external affairs power if needed) should override state exemptions that permit discrimination in any schools.

Explicitly guarantee communication access in education. The Education Standards should be updated to mandate that schools provide necessary supports like Auslan interpreters, real-time captioning, hearing loops, note-taking assistance, and bilingual (Auslan/English) programming where appropriate. The principle that DHH children are entitled to full access to the curriculum and school life in their preferred communication mode should be clearly stated.

Accountability and oversight: We need mechanisms to ensure schools follow through. This could include an independent body or regular reporting on metrics such as what adjustments have been provided, the outcomes for DHH students, and rates of suspensions/exclusions. Transparency will highlight schools or systems that are not meeting obligations.

Define inclusive education in line with best practice. Drawing on CRPD Article 24 and guidance from the World Federation of the Deaf, the DDA’s standards or guidance should recognize that true inclusion for DHH students may require bilingual-bicultural models (Auslan and English) and appropriately qualified personnel (e.g. only interpreters credentialed to a national standard should be used). Inclusion is not one-size-fits-all; for DHH children it often means access to a signing environment in addition to the mainstream curriculum.

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4.3 Outlawing disability-based vilification and harassment

Unlike some other discrimination laws, the DDA does not clearly prohibit public harassment, vilification, or hate speech on the basis of disability. This is a notable gap. DHH children and adults can be targets of ridicule or hostility - for example, a DHH student being mocked for using sign language in the playground, or online hate directed at people with disabilities. Currently, the DDA’s focus is on discrimination in specific areas (like employment or education), but a broader protection is needed to capture serious harassment that falls outside those settings.

Recommendation - Add anti-vilification protections: Amend the DDA to make it unlawful to seriously vilify, harass, or demean a person on the ground of disability. This could be modeled on existing racial vilification provisions. In practice, this reform would:

• Cover public acts of hate or serious harassment (for instance, bullying a child because they are DHH, or publishing material that spreads hatred of people with disability).

• Enable civil action or complaints against individuals ororganisations that permit a culture of disability hate (for example, a school that tolerates ongoing disability harassment among students).

« Allow for civil penalties or sanctions in egregious cases, sending a message that disability-based hate is as unacceptable as racial or religious vilification.

4.4 Justice and government services - ensuring access and ending discriminatory

exemptions

DHH children and their families often encounter barriers when dealing with the justice

system or other government services. Two critical issues are:

Communication in policing and justice: Too frequently, police interviews, investigations, or court proceedings involving a Deaf person proceed without a qualified Auslan interpreter. This undermines the person’s rights - a Deaf young person may not understand police cautions or court instructions, or their testimony may not be accurately conveyed. It is vital that law enforcement and judicial systems routinely provide professional interpreters and other communication supports.

Disability discrimination in migration law: Australia’s migration policies still allow for applicants to be denied visas on the basis of disability. The Migration Act and regulations include broad exemptions from disability discrimination scrutiny, meaning a child or family can be refused entry or residency essentially because the child is DHH (often couched in terms of potential health costs or “burden”). This runs directly against Australia’s commitments under the CRPD.

Recommendation - Ensure equal access to justice and remove discriminatory

exceptions:

The DDA (or associated policy directives) should explicitly require police, courts, and other public authorities to provide accredited interpreters and accessible communication in all interactions with DHH people. Just as there are standards for interpreters in courts for non-English speakers, there must be standards for Auslan/English interpreting in legal settings. No DHH person should face legal proceedings without the means to understand and be understood.

Remove the migration exemption that allows disability-based visa refusals. People should not be judged by a disability-related “cost” or stereotype. This Review should recommend scrapping those provisions so that immigration decisions must be made without discriminating on disability. (This would bring Australia in line with CRPD Article 18 on liberty of movement and nationality, and Article 5 on non-discrimination.)

More broadly, ensure that government programs and services cannot claim immunity from the DDA. Whether it’s policing, immigration, or any public service, the same non discrimination rules should apply. If any legislative exemptions exist that shield government actions from DDA compliance, they should be repealed or narrowed to only what is absolutely necessary (and certainly not for disability).

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5. Access to Justice - Removing Barriers and Strengthening Enforcement The DDA was intended to provide a pathway for individuals to seek justice when they experience discrimination. In practice, however, families find the complaints system difficult to navigate and often ineffective at delivering timely justice. Moreover, the Act’s enforcement mechanisms rely almost entirely on individual complaints, with limited tools to address systemic issues. This section addresses how to make justice more accessible to families and how to give the law “teeth” through better enforcement powers.

5.1 Barriers in the current complaints process

Through consultations, parents described the DDA’s complaint process as onerous and even retraumatizing. Key barriers include:

• Heavy burden on families: It is typically up to the parent or individual to gather evidence, lodge the complaint with the Australian Human Rights Commission (AHRC), and often represent themselves through negotiations or even court. This is a stressful, time-consuming task - effectively a part-time job - especially on top of caring for a child with additional needs.

« Lengthy delays: Resolving a DDA complaint can take many months or years. Meanwhile the child continues to miss out on supports. For a DHH child, every month without language access is a month of lost development. The damage done during drawn-out proceedings (for example, a child languishing two school years with no interpreter) cannot truly be undone by a later finding.

• Trauma and conflict: The process of pursuing a complaint can be emotionally draining. Families must retell and relive painful experiences of their child being excluded or mistreated. The conciliation and legal process can also feel adversarial - some parents feel that, instead of prompt apologies or fixes, they encounter denial, blame, or stalling tactics from respondents (schools, departments, etc.).

• Imbalance of power: Schools, government agencies, or businesses often have legal teams or resources to defend against complaints, whereas families often cannot afford lawyers and have little support. This power disparity can pressure families into settling for less or dropping the case.

The net effect is that many families simply give up on the process, or never file a complaint at all, even when serious discrimination has occurred. The burden on individuals means systemic problems remain unchallenged - exactly what we see with recurring issues like lack of interpreters in schools or hospitals across the country.

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5.2 Stronger systemic enforcement powers

It is neither fair nor effective to make individual children and families the primary enforcers

of a national anti-discrimination law. Other fields have shown that regulatory oversight can

drive compliance more efficiently - for example, occupational safety regulators don’t wait

for an injured worker to complain; they conduct audits and impose penalties to prevent

injuries. The DDA needs a similar shift.

Recommendation - Empower regulators for proactive enforcement:

Augment the AHRC’s powers: The Commission (or a dedicated Disability Rights Commissioner within it) should be given clear authority to initiate investigations into systemic or serious cases of discrimination without waiting for a complaint. It should also be able to conduct compliance audits (for instance, reviewing how well a state education department is meeting the Education Standards for DHH students), and issue compliance notices or other legally binding directions for improvement. In cases of egregious or willful breaches, the regulator should be able to seek civil penalties to hold organisations accountable.

Enable binding outcomes: Currently, the AHRC conciliation process can only produce voluntary agreements, and if that fails, the individual must go to court. The law should introduce mechanisms for binding and enforceable outcomes - for example, the ability for the Commission to accept an enforceable undertaking from a respondent (with breach of the undertaking leading to penalties), or refer a matter for swift determination if an urgent remedy is needed.

Appoint a Disability Commissioner with a mandate for reform: Having a dedicated commissioner focusing on disability rights (especially if armed with the above powers) would keep systemic issues in view. This role could drive investigations, publish findings, and recommend reforms across education, health, etc., ensuring the voices of children and families are amplified at a national level.

Transparency and public accountability: Introduce requirements for regular public reporting on disability inclusion outcomes. For example, the Education Department might report data on how many students receive interpreting or captioning support, and outcomes for those who do not. Public “report cards” on compliance would empower families with information and incentivize organisations to improve.

Accessible, child-friendly complaints: Even with stronger systemic enforcement, individuals will still need to make complaints. Those processes should be made far more accessible. This means child- and youth-friendly avenues for reporting issues (recognizing that children have rights independent of their parents), trauma-informed procedures to minimize retraumatization, and guaranteed communication supports (Auslan interpreters, captioning, easy-read documents, etc.) in all interactions with the Commission or courts. A DHH child or parent should be able to participate fully in a complaints process without additional barriers.

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By strengthening enforcement in these ways, the DDA would no longer rely solely on those who have been wronged to police the system. Instead, government and institutions would share in the responsibility to proactively ensure compliance - and families who do raise complaints would face a process that is supportive and effective, rather than one that adds to their burden.

6. Eliminating Exemptions and Inconsistencies A recurring theme in the DDA’s shortcomings is the presence of carve-outs - areas where discriminatory behavior is effectively allowed - and inconsistencies across different jurisdictions. These undermine the DDA’s effectiveness and leave many families without equal protection. For the DDA to truly ensure equal rights for all, it must apply broadly and uniformly, with as few exceptions as possible.

6.1 Religious and private school exemptions

Every child has the right to a quality, inclusive education - yet today not all schools are held to the same standard. In New South Wales and several other states, private and religious schools are explicitly exempt from certain disability discrimination laws. In practice, this means a private school can legally refuse to enroll a DHH student or can decline to provide accommodations that a public school would be required to offer. PODC has heard from families who were subtly (or not so subtly) discouraged from enrolling their DHH child ina private school or told that supports like interpreters weren’t available there because the school “doesn’t have to.” This dual system is fundamentally unfair and at odds with Australia’s human rights obligations.

Under Article 24 of the CRPD, Australia must ensure an inclusive education system at all levels. That cannot be achieved if an entire sector of schools is allowed to opt out of inclusion.

Recommendation: Remove any exemptions that permit private or faith-based schools to avoid disability obligations. The DDA (supported by federal legislative power) should guarantee that all schools, public or private, have the same duty to accept and accommodate students with disabilities. No child’s access to education should depend on the type of school they attend. This reform would ensure that choosing a religious or independent school does not mean forfeiting the student’s rights to equal access and support.

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6.2 Insurance and migration discrimination

Two areas where the DDA grants unusually broad exceptions are insurance and migration:

Insurance: The DDA allows insurers to discriminate based on disability if the decision is supported by actuarial or statistical data (or other reasonable evidence). While there is some rationale for risk-based pricing, in practice families report being flatly denied products like travel insurance for a DHH child, or charged higher premiums, without any transparent justification. Often, there is no evidence that the child’s deafness actually increases the risk insured against; it is simply assumed or stigmatized.

Migration: Australia’s immigration laws contain provisions (often called the “health requirement”) that can refuse visas or permanent residency to a person with disability (or a family with a child with disability) on the grounds of projected healthcare or support costs. These migration law exemptions mean that decisions explicitly factoring in disability are effectively shielded from DDA challenge. This stands in stark conflict with CRPD principles of non-discrimination (Article 5) and the rights of persons with disabilities to freedom of movement and nationality (Article 18).

Recommendation: Narrow or eliminate these exemptions:

Insurance - stricter justification: Insurers should only be permitted to use disability as a factor if they can demonstrate, with up-to-date data and an independent review process, that the disability materially increases risk in the specific context. The DDA should be amended to require transparency - the insurer must tell the consumer what data or reasoning they relied on - and provide a way to challenge decisions that seem based on outdated or generalized assumptions. In short, no blanket refusals or surcharges “because of disability” without rigorous evidence.

Migration - end disability-based visa denials: The DDA (or related policy reform) should remove the broad migration exemption. Disability should not by itself be considered a detriment in visa decisions. Each individual or family should be assessed on their merits and circumstances, with recognition that people with disability contribute socially and economically. Australia can meet its immigration policy goals without resorting to disability discrimination - other countries have removed such rules, and Australia should too.

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6.3 Inconsistent state protections - achieving national consistency

Because Australia’s states and territories have their own anti-discrimination laws (and varying education and service systems), there are inconsistencies that result in a “postcode lottery” for families. For example, some states provide stronger supports or enforceable standards for students with disability, while others lag behind. In some places, sign language interpreters in court are guaranteed by state policy; elsewhere, they are not. Rural and regional areas often have fewer services, meaning a DHH child in the country might get far less support than one in a capital city.

Such disparities undermine the principle of equal access. A child’s rights should not depend on which state they live in.

Recommendation: The Commonwealth should use all available tools — including its constitutional powers - to ensure baseline consistency of disability rights nationwide. This could include:

« Relying on the External Affairs power (using the CRPD obligations) to legislate national standards or provisions that fill gaps in state laws. For instance, if state laws allow certain discrimination (like the private school exemptions), the federal DDA should override them by setting a higher uniform standard.

• Expanding and strengthening national Disability Standards (under the DDA) that apply across all jurisdictions. Areas like education, transport, and premises access already have federal standards; these should be updated to include communication access and other gaps, and made enforceable. In areas not yet covered (such as health care or emergency services), new standards could be developed to ensure no state can fall below an agreed level of access.

The goal is that families have the same rights and expectations wherever they are in Australia. By eliminating loopholes and harmonizing protections upward, we can avoid situations where, for example, a DHH student is well-supported in one state but would be left without services just over the border. Consistency will also make it easier to educate the public and duty-holders about their obligations - a clear, national framework of rights is simpler and stronger than a patchwork of exceptions.

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7. Communication and Language Access - A Standalone DDA Standard Throughout this submission we have underscored the importance of communication and language to the lives of DHH children. To truly secure these rights, PODC advocates for a dedicated Communication and Language Access Standard under the DDA. This would elevate communication access from a case-by-case accommodation to a consistent,

enforceable system-wide requirement.

Why a new Standard is needed: Under the current framework, families must negotiate or fight for interpreters, captioning, or accessible materials in each individual setting - school, TAFE, hospital, etc. This piecemeal approach leaves many gaps. DHH children fall through those cracks, suffering language deprivation and exclusion in environments that should include them. A standalone DDA Standard would make the right to communication access explicit and uniform across Australia, removing ambiguity about what must be provided.

Importantly, the Standard would give detailed effect to obligations already implied by the CRPD (Article 9 on accessibility, Article 21 on freedom of expression and access to information, and Article 24 on education). It would respond to evidence from inquiries and experts - for example, Deaf Australia has warned that deafness itself does not cause

developmental delay; being denied access to a natural language does. |n other words, when

DHH children experience poor outcomes, it is often because the system failed to give them the tools of language and communication. The proposed Standard aims to ensure that failure is remedied.

Key components of the Communication and Language Access Standard:

• Explicit recognition of language rights: The Standard should state clearly that people have the right to communicate in their preferred mode(s) - whether through Auslan, spoken language, written communication, augmentative communication, etc. In practice, this means recognising Auslan (and other sign languages used in Australia) as languages of equal status to English. DHH children and adults should be guaranteed access to Auslan interpretation or signing environments whenever needed for equal participation. Families should never be made to feel that requesting an interpreter or choosing a signing pathway is asking for special treatment - it is a right.

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Guarantee of qualified communication support: Any organisation covered by the DDA (schools, universities, employers, government agencies, courts, hospitals, public event organizers, etc.) must provide competent communication support services when interacting with a DHH person. This includes providing accredited Auslan interpreters, qualified captioners or note-takers, and written materials in accessible formats. Critically, the Standard should prohibit reliance on unqualified persons or children to interpret - for example, a family member or a classmate should never be used as a substitute for a professional interpreter in important matters. This aligns with existing government policy but would make it enforceable.

Across all domains of public life: The Communication Access Standard would apply to all areas covered by the DDA - education, employment, the provision of goods and services, transport, the justice system, health care, telecommunications, and so on. It would also specifically address modern contexts like digital accessibility (ensuring online services, websites, and public digital content are accessible through captioning, sign language content, or other means). Public information - from emergency announcements to government websites - should be as accessible to a DHH person as it is to a hearing person.

Proactive implementation, not just reactive: A core principle of the Standard must be that organisations plan for communication accessibility in advance. Rather than waiting until a DHH student enrolls or a DHH patient arrives in the emergency room, systems should have policies and resources already in place. For example, schools would incorporate into their planning the possibility of DHH students by budgeting for interpreting or captioning services; hospitals would routinely train staff on how to book interpreters and never assume a patient can lip-read or get by without one. The Standard can set benchmarks (e.g. all public events must be advertised with information on how to request communication support) to drive this anticipatory approach.

Monitoring and enforcement mechanisms: Like other Disability Standards, the Communication and Language Access Standard should be enforceable. Organisations might be required to report on their compliance (such as publishing what communication supports they provided over the year). The AHRC or another regulator should have the power to conduct audits under this Standard. Systemic failure to comply

• say, a government department repeatedly not providing interpreters - could attract penalties or binding directions for improvement. Individuals would also retain the right to complain if they personally were denied communication access in breach of the Standard.

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What would this look like in practice? With this Standard in place, a DHH child starting at a mainstream school would no longer need their parents to wage a campaign for basic

supports. The school would be obligated from the outset to arrange necessary communication accommodations (e.g. Auslan interpreters for classes and school assemblies, captioned multimedia, hearing loop in the auditorium). The family’s role would simply be to participate in planning those supports, not to convince the school to provide them. If the school failed to meet its obligations, the breach of the Standard could be taken up by regulators or through clear legal avenues - shifting the onus off the family.

In sum, a Communication and Language Access Standard would transform communication supports from a contentious individual battle into a guaranteed systemic provision. It would operationalize the principle that communication is a right, not a privilege. By doing so, it ensures no DHH child is left behind or forced to “earn” their access through complaints. Instead, inclusion would be the norm, and every DHH child could grow up with full access to

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8. Conclusion - From Reactive to Proactive Reform When it was enacted in 1992, the Disability Discrimination Act gave families a way to challenge injustice and affirmed that Australians with disabilities have equal rights. Over thirty years on, it is clear that the DDA in its current form is not meeting the needs of DHH children and their families. It remains largely reactive - coming into play only after a child has been excluded, after a family has been fighting for years, or after damage has been done. The human cost of this shortfall is immense:

• Years of lost education while children wait for the supports they need. « Irreversible language delays caused by critical windows for learning being missed.

• Exhausting battles for every interpreter, every captioned lesson, every service - battles that drain families and children alike.

• Systemic discrimination that goes unaddressed because the law puts the onus on those affected to drive change, one case at a time.

Strengthening the DDA is not only a matter of human rights compliance - it is also a matter of sound public policy. When children are provided with timely language access and inclusive education, they are more likely to achieve positive employment, health, and social outcomes. This reduces long-term reliance on the NDIS, health services, and welfare systems. Every dollar invested in early access to communication and inclusion generates significant social and economic returns. Reform of the DDA is therefore not simply an equity measure; it is an investment in the productivity and wellbeing of future generations.

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Hall, M.L., Eigsti, l.-M., Bortfeld, H., & Lillo-Martin, D. (2017). Auditory deprivation does not impair executive function, but language deprivation might: Evidence from deaf native signing children. Journal of Deaf Studies and Deaf Education, 22(1), 9-21.

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People with Disability Australia (PWDA). (2023). Foundational supports submission. Productivity Commission. (2011). Disability care and support (Report No. 54).

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