NDIA Accountability Project

Recommendations for balancing student needs and school capacity under the Disability Discrimination Act

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Response: Review of the Disability Discrimination Act

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1. EXECUTIVE SUMMARY

1.1. About the Association of Independent Schools of South Australia (AISSA)

The AISSA represents 105 Independent schools across South Australia, educating over 55,000 students. Independent schools provide diverse and high-quality educational opportunities to all students, including those with disability.

Currently, more than 13,700 students with a disability attend Independent schools in South Australia, representing approximately 25% of total enrolments. Additionally, the sector includes five Independent special and special assistance schools which are specifically designed to support students with disability and other complex learning needs.

The AISSA provides a range of supports to its member schools including promoting inclusive practices, strengthening leadership capability, and fostering whole-school cultures of equity and belonging. This work equips school leaders, teachers and educational support staff interpret legislation, implement policy, and improve educational outcomes for all students, including those with disability.

1.2. Context of this Submission

The AISSA welcomes the opportunity to respond to the Australian Government’s review of the Disability Discrimination Act 1992 (the Act), including consideration of the 15 recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. This submission is based on feedback from member schools, including from a targeted consultation process, and internal professional knowledge and expertise.

The AISSA supports legislative change which provides a framework that genuinely enhances and protects the access of students with disability to education. While we recognise the importance of modernising and strengthening the Act, we emphasise the need to avoid over-complication. Legislation that is overly prescriptive or duplicative may inadvertently create barriers for schools and families, rather than support inclusion. In this context we strongly support the retention of the reasonableness element, which provides for an iterative process which enables collaboration between parties, and, further, the continued inclusion of imputed disability.

It is essential that the Act remains high-level legislation. The AISSA would strongly oppose any changes to the Act that would duplicate existing regulatory operations in particular in the area of exclusionary discipline and suspension in education. These elements are currently regulated through the Disability Standards for Education (DSE) and relevant State and Territory legislation. Application of the Act must be supported by enhanced practical guidance materials and resources.

We note that the Disability Standards for Education (DSE) are outside the scope of this review. However, the Standards remain critical to operationalising the Act, and their regular five-year review cycle should continue.

While also outside the scope of this review, it is critical that there is a genuine commitment by governments to funding support that meets the additional education needs and support requirements for students with disability. The increasing focus on schools as hubs to facilitate external allied health services adds an additional complexity to education provision.

The AISSA concurs with the view of its national office, Independent Schools Australia, that any additional responsibilities for schools in assisting with the delivery of the Thriving Kids Initiative should be supported by adequate additional funding for schools. In addition, funding should be sector-blind and commensurate with the additional expectations being placed on schools and that there is an acknowledgement of the current issues with capacity of allied health specialists. It is critical that any new models should be piloted prior to implementation at a national level.

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2. KEY RECOMMENDATIONS

The AISSA makes the following key recommendations:

  • Any contemporising of the definition of disability should be subject to ensuring any changes provide clarity and operation enhancements and are aligned with existing regulatory frameworks.
  • Imputed disability should be retained in the Act.
  • The element of reasonableness should be retained and supplemented by a list of factors to guide application.
  • The review should recognise that in the school sector a positive duty reflects current best practice, and must be framed in a way that is practical, achievable and proportionate to school capacity.
  • The current definition of unjustifiable hardship should be retained, however, its application strengthened through clarity and consistency of guidance materials.
  • The Act should remain high-level legislation with operational aspects supported by relevant standards and State and Territory legislation.
  • Focus should be placed on enhancing and expanding practical guidance materials that support the application of the Act.

3. RESPONSE TO ISSUES PAPER

3.1. Part 1: Updating understandings of disability and disability discrimination

Modernising the Definition of Disability

The AISSA supports updating the definition of disability to reflect contemporary understandings, provided that it:

  • remains clear, inclusive and broad in scope;
  • aligns with the NDIS, NCCD and relevant legislative and guidance instruments as there is currently considerable disparate meaning of disability which can create misunderstanding (recognising that significant work has been undertaken in South Australia to update the Education & Children’s Services Act 2019 (SA));
  • continues to include imputed disability, noting that imputations must be supported by reliable evidence;
  • is accessible and meaningful for educators, families and the community; and
  • frames disability using positive, strengths-based language while retaining clarity of legal protection.

Addressing Intersectionality and Indirect Discrimination

The AISSA strongly supports the retention of the reasonableness element in the definition of indirect discrimination. Reasonableness is not a one-off, standalone test but rather, is an iterative process of consultation and adjustment, ensuring that schools and families work collaboratively to meet student needs. The Standards already impose an obligation on schools to implement reasonable adjustments in a collaborative way, which involves consulting with relevant stakeholders.

The AISSA supports Option 8b. in the Issues Paper: retaining reasonableness while supplementing the definition with a list of factors to guide application. Removing reasonableness risks adversarial, litigious outcomes rather than constructive engagement.

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3.2. Part 2: Positive duty to eliminate discrimination

The AISSA recognises that schools already operate proactively to prevent discrimination and embed inclusive practices, in addition to responding reactively when concerns or complaints arise. A positive duty reflects current best practice, however, it must be framed in a way that is practical, achievable and proportionate to school capacity. Key considerations include:

  • Equity and capacity: Smaller schools with limited resources face significant challenges in implementing systemic changes (e.g. physical modifications, assistive technology).
  • Documentation: While improved record-keeping may enhance accountability, it must not create an excessive administrative burden.
  • Language: Terms such as “ensure wellbeing” are unrealistic and should not be imposed as enforceable duties.
  • Scope: Any positive duty should recognise differences in size, type, and resources of schools.

Noting the increasing focus on schools as hubs for allied health and other support services, the AISSA recommends caution in wholesale adoption of this approach given potential equity issues – it is essential that adequate resourcing is in place to support this.

3.3. Part 3: Encouraging inclusion of people with disability in employment, education and other areas of public life.

Reasonable Adjustments

The AISSA opposes removing the word ‘reasonable’ from ‘reasonable adjustments’. The qualifier ensures balance between meeting student needs and the practical capacity of schools to deliver adjustments in inclusive ways. Without it, schools could face unbounded expectations, resulting in schools being unable to viably implement adjustments.

Unjustifiable Hardship

The AISSA supports retaining the current definition of unjustifiable hardship, while strengthening clarity and consistency of guidance. Documentation of decision-making, consultation processes, and assessment of alternative measures should remain central to ascertain whether the benefit to the person and community would be outweighed by the detriment and cost to any person concerned, as identified in Table 4 on page 53.

The AISSA supports the inclusion of greater clarity and guidance on unjustifiable hardship in the Standards.

Employment

The AISSA supports additional guidance for employers and employees on the nature and extent of any adjustments for staff with disability, particularly regarding consultation before employment decisions are finalised. This is currently an area where information and guidance are lacking.

Exclusionary Discipline and Suspension

The AISSA’s position is that the Disability Discrimination Act should remain high-level legislation.

The Standards and existing legislation in each State and Territory already contain provisions regarding exclusionary discipline. As such, it is the AISSA’s position that each of these provisions align and provide clarity for both schools and families as to their application.

Currently in South Australia, the Education and Children’s Services Act 2019 (SA) contains provisions that support exclusion as a last resort. Additionally, upcoming amendments to the Act will require all education sectors to report on the number, proportion, rate and grounds of suspension, exclusion and expulsion of students with disability. Each school will be required to have a suspension, exclusion and expulsion policy and procedures consistent with the legal provisions and key DRC Principles. These policies and procedures will be easily accessible by students with disabilities and their families.

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3.4. Part 4: Improving access to justice

The AISSA supports efforts to make complaints and resolution processes clearer and more accessible. Guidance should be in plain language, culturally appropriate, and available in multiple formats. The National Children’s Commissioner’s Child-Friendly Materials provide a useful model.

3.5. Parts 5-7: Exemptions, modernisation of the Disability Discrimination Act and further options for reform.

Disability Action Plans

The AISSA supports these plans being included within the Standards. The AISSA reiterates its position that the Act should remain high-level with operational aspects outlined in the relevant standards.

Modernisation

Any changes to the legislation should reduce duplication with existing state registration and compliance requirements. Greater alignment between Commonwealth and State and Territory legislation is essential. Inconsistent or competing legal obligations create confusion and risk for schools and future reform should prioritise coherence across jurisdictions.

4. CONCLUDING COMMENTS

South Australia’s Independent schools are deeply committed to inclusive education. We support modernising the Disability Discrimination Act in ways that strengthen protections for students with disability while ensuring legislation is workable and aligned with existing regulatory frameworks.

The AISSA welcomes further dialogue with government to ensure reforms achieve the shared goal of improving outcomes for children and young people with disability.