ISA SUBMISSION

October 2025

sutodians of country throughout and community. We pay respect to illiation.

Independent Australia | ABN 83 005 118 927

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INDEPENDENT SCHOOLS AUSTRALIA

1. ABOUT ISA 4
2. INTRODUCTION 5
3. RECOMMENDATIONS 6
4. RESPONSES TO THE DDA REVIEW ISSUES PAPER 7

PART 1: Updating understandings of disability and disability discrimination ………………………………………. 7 PART 2: Positive duty to eliminate discrimination ……………………………………………………………………………………… 8 PART 3: Encouraging inclusion of people with disability in employment, education and other areas of public life. ………………………………………………………………………………………………………………. 10 PART 4: Improving access to justice ………………………………………………………………………………………………………….. 11

5. CONCLUSION 12

1. ABOUT ISA

Independent Schools Australia (ISA) is the national peak body for Independent schooling in Australia. ISA represents the sector on national issues and engages with the Australian Government, national agencies, media, key stakeholders, and the wider Australian community.

Working with the eight state and territory Associations of Independent Schools (AISs), ISA represents almost 745,000 students, 1,230 schools and a workforce of over 128,600 people.

Independent schools are long-established partners in Australia’s education system, alongside government and Catholic schools. They make a valuable contribution to society and the learning and wellbeing of Australian children.

The Independent school sector is diverse, and schools serve a wide range of communities. The latest available data shows that more than one in six Australian school students attends an Independent school. For secondary students, it is over one in five.

Students at Independent schools reflect the full diversity of Australian society – including those who experience one or multiple forms of disadvantage. These students include:

• high-needs students with disability attending special schools
• Aboriginal and Torres Strait Islander students attending remote 100 per cent Indigenous schools
• students living in regional, rural and remote locations
• highly disadvantaged and disengaged young people attending Independent special assistance schools.

Most families with children enrolled in Independent schools are middle-to-low-income earners, increasingly from culturally diverse backgrounds, and residing in outer-suburban and inner-suburban communities. Many of these families are currently facing economic stress and are making substantial sacrifices for their children’s education.

According to the most recent data, the majority of Independent schools charge annual fees of less than $6,000, and there was a greater number of schools charging less than $1,200 per year than those charging over $20,000. Some Independent schools charge no fees at all. More than half of the sector’s recurrent income comes from parents and families.

Many Independent schools provide a religious or values-based education. Others promote a specific educational philosophy or alternatively recognised curriculum. Some have been established by community groups seeking to meet particular needs or to reflect the religious values of a community.

Independent Catholic schools are a significant part of the sector, accounting for eight per cent of the Independent sector’s enrolments.

Most Independent schools are set up and governed independently on an individual school basis. However, some schools with common aims and educational philosophies are governed and administered as systems, for example, Lutheran schools. Systemic schools account for 20 per cent of schools in the sector but the majority of schools in the sector are autonomous non-systemic schools.

2. INTRODUCTION

Independent Schools Australia (ISA) prepared this submission in response to the Australian Government’s review of the Disability Discrimination Act (DDA).

Over 175,000 students with a disability attend 1,206 Independent schools in Australia, making up more than 23% of the student population. Nearly all (98%) Independent schools have enrolled students with disability. Additionally, 22,000 students attend 151 Independent special and special assistance schools specifically designed to support students with disability and other special needs.

The Attorney-General is considering the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability’s (the Royal Commission on Disability) 15 recommendations for the DDA, as well as on other potential amendments aimed at modernising and strengthening the Act.

This review acknowledges that the DDA should be improved and seeks views on the best way to do it for both people with disability and those who have duties under the Act.

Some of the proposed changes will directly impact Independent schools. These include the introduction of a “positive duty,” which would require schools to proactively prevent discrimination instead of addressing it after it occurs and reviewing the requirements for demonstrating “unjustifiable hardship”.

ISA has focused its response on the specific areas that would most affect Independent schools. This submission was prepared in consultation with the state and territory Associations of Independent Schools.

3. RECOMMENDATIONS

1. ISA supports updating the Disability Discrimination Act to reflect a contemporary understanding of disability. Any amendments to the definition should ensure that the definition remains clear, inclusive and does not narrow the current definition’s scope.

2. The Disability Standards for Education (DSE) should be the primary framework for implementing proactive duties in an educational context. Enhancements to these duties should be made through amendments to the Standards, rather than introducing a new “positive duty” in the DDA, to leverage existing frameworks familiar to schools.

3. The details, processes and factors for determining the “reasonableness” element within the current framework for indirect discrimination should remain within the DDA. This concept is critical for balancing the provision of adjustments for students with manageability for the school. Removing this detail and creating a standalone duty in the legislation could make the process more adversarial and litigious.

4. ISA recommends that any proposal to remove the word “reasonable” from “reasonable adjustments” in the DDA be approached with caution. The DDA and associated guidance materials clearly define the criteria for “adjustments” and the application of “unjustifiable hardship,” ensuring schools have practical, consistent benchmarks for decision making.

5. Legislation must allow for flexibility in determining appropriate adjustments, guided by the DSE. This approach recognises the diversity of student needs and school contexts.

6. The DDA review should recommend the release of practical resources, including case studies, templates, and guidance materials that clearly illustrate successful inclusion and compliance under the DSE. The Independent sector would support the development of these resources.

7. Any amendments to the DDA should be consistently reflected across related frameworks, such as the DSE and the Nationally Consistent Collection of Data on School Students with Disability (NCCD), to ensure clarity and maintain the integrity of compliance and reporting processes.

4. RESPONSES TO THE DDA REVIEW ISSUES PAPER

Feedback from the Independent school sector on the first four parts of the DDA Review Issues Paper is set out below. ISA has no specific feedback on parts five to seven of the Issues Paper.

PART 1: Updating understandings of disability and disability discrimination

Modernising the definition

ISA supports modernising the definition of disability within the DDA. Independent schools have consistently expressed concerns that the current definition, with its outdated, deficit-based language, no longer aligns with contemporary understandings of disability.

The current definition in the DDA, which emphasises “deficits,” “malfunction,” and “disturbed behaviour,” carries negative connotations and contributes to stigma. This language has seen only minor amendments since 2009 and is widely considered to be out of step with modern perspectives, such as the social and human rights models of disability.

Independent schools do not advocate for narrowing the scope of the definition, but rather for adopting more contemporary and inclusive language that better reflects the diverse experiences of people with disability. The definition of disability in the Act should be modernised to ensure it is inclusive, strengths-based, culturally sensitive, and reflective of contemporary understandings, without reducing its scope or limiting protections.

It is important that any updated definition recognises and accounts for the experiences of neurodiverse and Aboriginal and Torres Strait Islander people. Additionally, it is essential that the new language incorporates the principle of intersectionality, acknowledging that barriers to accessibility and experiences of discrimination can be compounded by multiple forms of discrimination due to race, sex, gender identity, religion, age, and disabilities. The inclusion of intersectionality in recent legislation in Tasmania (Disability Rights, Inclusion and Safeguarding Act 2024) and the Australian Capital Territory (Disability Inclusion Act 2024) provides a valuable precedent for this approach.

Any revised language must be clear and accessible to ensure that it is easily understood by both people with disability and duty holders, facilitating a shared understanding and effective implementation of the Act.

Direct Discrimination

The definition of direct discrimination in the DDA need to be simplified because it presents significant barriers for people with disability, who are experiencing discrimination, to seek legal protection. The current two-step test is complex and places an unfair burden on the person making a complaint. The DDA currently requires a person with disability to prove they were treated “less favourably” than a person without a disability in “similar circumstances.” This comparator test is technical and is difficult to satisfy in practice. The Royal Commission on Disability found that it operates as a major barrier to people trying to prove discrimination. An applicant must also prove that the “less favourable treatment” occurred “because of” their disability (causation). This can be extremely difficult to prove, as:

• the person with disability often lacks access to information and records that would explain the reason for the duty holder’s actions or inactions.
• duty holders who are discriminating (intentionally or otherwise) against a person with a disability are unlikely to attribute their decision making to the person’s disability.

ISA supports the recommendation to replace the comparator test with a detriment test. Instead of comparing treatment to that of a non-disabled person, a detriment test would focus on whether the person with disability experienced unfavourable treatment or detriment due to their disability. This approach is not new; it’s already used in anti-discrimination legislation in Victoria and the Australian Capital Territory.

The detriment test more accurately reflects the reality of discrimination. It avoids the often impossible task of constructing a hypothetical comparator and shifts the focus directly to the harm or detriment caused by the discriminatory act. This change would make the law more accessible, allowing more genuine claims of discrimination to succeed and better aligning the DDA with the principles of substantive equality (sometimes different treatment, such as providing a reasonable adjustment, is necessary to achieve a fair outcome).

The DDA Review Issues Paper also recommends shifting the burden of proof to the respondent. An applicant would only need to prove that the unfavourable treatment occurred. The respondent would then be required to prove that their actions were not based on the person’s disability. Placing the entire onus of proof solely on the respondent (such as a school) creates a serious risk of imbalance. In practice, a duty holder, such as a school, could be put in a very difficult, potentially indefensible, position if they are automatically assumed to have discriminated and the applicant (such as a parent or student) is not required to provide any evidence of detriment or causation. This exposes duty holders to potential false or unsubstantiated claims. A balanced legal approach ensures procedural fairness, while strengthening protections against discrimination.

Indirect Discrimination

The DDA’s current framework for defining indirect discrimination is overly complex and contains ill-defined legal defences, creating ambiguity for schools and other duty holders, and an unnecessary burden for individuals with disability. Under the current legislation, a duty holder who is unwilling or unable to implement a requested adjustment can first argue that a practice is not a “reasonable requirement” and, if that fails, they can then claim that making an adjustment would cause “unjustifiable hardship” to the organisation. The Disability Royal Commission has recommended removing the “reasonableness element” to simplify the legal process, focusing the test on two key questions: whether a discriminatory condition exists and whether avoiding it would impose an “unjustifiable hardship.” While this approach aims to streamline the law, it presents significant concerns for schools.

Independent schools understand the intent of removing “reasonableness” to simplify the legal framework and strengthen individual rights. However, this change may instead create new challenges. Without the initial “reasonableness” test, duty holders will be drawn straight into more complex legal arguments regarding “unjustifiable hardship”.

In schools, the assessment of reasonableness in adjustments is currently informed by a collaborative decision-making process involving school leaders, teachers and often includes medical and allied health professionals. There are concerns that this collaborative decision-making process to support students with disability may not be given due consideration when determining “unjustifiable hardship.” It is also unclear if adjustments requested by parents, for example, would always be in the student’s best interest in the school context.

To mitigate these risks, ISA believes clear and detailed guidance on what constitutes “unjustifiable hardship” must be developed and incorporated within the DSE rather than the DDA itself. Further, it is unclear whether removing the “reasonableness element” but introducing a clearer definition of “unjustifiable” will largely result in the same outcomes.

This guidance is critical to avoid a vague and subjective legal standard and to ensure that the change strengthens inclusive practices without creating uncertainty or adversarial relationships. Any changes to the DDA must also be consistently reflected across existing frameworks like the DSE and the NCCD to ensure alignment of current frameworks and maintain the integrity of current compliance and reporting processes.

PART 2: Positive duty to eliminate discrimination

The proposal for a positive duty on duty holders to proactively eliminate discrimination, harassment, and victimisation of people with disability represents a significant shift from the current reactive model, which relies primarily on complaints. In principle, Independent schools support this shift, as it aligns with the intent of the DSE, which already emphasise proactive inclusion and the elimination of

discrimination in education contexts. In many ways, schools are already working within this framework through inclusive practices, reasonable adjustments, and ongoing professional learning.

As of 1 July 2025, Queensland’s Anti-Discrimination Act 1991 introduced a positive duty requiring duty holders such as schools and employers to proactively eliminate discrimination, harassment, and other objectionable conduct across all protected attributes, including disability (MinterEllison1). This is broader than current federal frameworks, which typically emphasise reactive enforcement over proactive prevention. ISA agrees that a similar positive duty at the Commonwealth level could amplify protections for people with disability. However, ISA notes that even if a school proactively raises awareness to reduce the risk of discrimination it may not be able to completely “eliminate” discrimination. Schools are not able to completely control the behaviour of every individual associated with a school; however, they can put into place positive cultural practices, policies, procedures and whole school approaches. Having a proactive approach should be sufficient for schools to meet the requirements of a positive duty.

Independent schools are in favour of a supportive but pragmatic approach to introducing a positive duty for schools to proactively eliminate discrimination. While the goal of a positive duty is supported, its implementation must be carefully managed to avoid an unmanageable burden on schools. The size and capacity of schools vary greatly, and smaller schools with limited resources may face greater challenges in embedding a proactive model. The cost of implementing changes, such as assistive technology and physical modifications, may also be challenging for smaller schools.

Schools may be required to strengthen how they document their inclusive practices, both to demonstrate compliance and to provide evidence in the event of complaints. While this can support accountability, it risks adding significant administrative burden if not accompanied by streamlined tools and resources.

Several AIS stakeholders suggested that the DSE is a better vehicle for a positive duty than the DDA itself. The DSE already uses language such as ‘require’ and outlines positive obligations, making it a more familiar and practical framework for schools. This approach would be more effective than a new, overarching legal requirement within the DDA. If the DDA is amended, guidance material should highlight:

• what has changed (e.g., new categories, positive duty, stronger vilification protections)
• what this means in practice for duty holders and individuals
• a transition timeline for compliance.

An operational concern was identified regarding schools having to make decisions based on incomplete information, which is often due to insufficient detail provided by allied health professionals, or for some schools the inability to access allied health professionals. A positive duty would likely require schools to document all information used for decision-making, which is time-consuming and difficult to do when data is imperfect, highlighting a practical challenge of shifting from a reactive, complaints-based model to a proactive one.

Independent schools also expressed concern over ambiguous wording in the proposed changes including “as far as possible” and “as far as practicable.” The consensus is that this language must be clearly and consistently defined. Comparisons to legislation such as the Sex Discrimination Act may provide further clarity. Additionally, stakeholders noted that ‘ensuring’ wellbeing and social inclusion sets an incredibly high bar and may create unrealistic expectations. The proposed changes to the legislation should acknowledge what is practical and possible in different contexts. Without this clarity, there will be unrealistic expectations placed on schools.

1 Deanna McMaster, Cathy Lyndon, and Daniel Szabo, “Queensland overhauls discrimination laws, introduces new positive duty,” MinterEllison, 13 September 2024, https://www.minterellison.com/articles/queensland-overhauls-discrimination-laws (accessed 22 September 2025).

For a positive duty to be successful, schools will require significant support, including freely available training, templates, webinars, train the trainer packs and case studies videos. Flowcharts explaining the complaints process through the Australian Human Rights Commission (AHRC) and case summaries showing how deidentified past matters were resolved would also be of value. Community awareness campaigns to explain rights and obligations in plain, accessible language are also needed.

These campaigns should promote respectful communication, inclusion, and equity for people with disability. Additionally, further development of resources for students with disability and their families is recommended. Building on the “Information resources for students with disability and their caregivers” released earlier this year, future materials could include step-by-step guides such as “What to do if you experience discrimination,” as well as visual fact sheets or infographics that illustrate what discrimination looks like in everyday contexts.

Effective professional development for teachers is crucial for successful implementation and may require additional funding for schools to cover teacher release time to attend training. This training should include practical examples of reasonable adjustments for various school activities, such as:

• classroom instruction
• assessment
• extracurricular activities including camps and excursions
• student transitions.

Training would also help shift mindsets and ensure a consistent approach across the education sector. Additionally, a dedicated cross-sectoral support system for schools, similar to the one provided by the DSE, is essential. This system would help schools audit their current practices and ensure compliance.

Overall, while the positive duty is achievable in principle, its success will depend on clear definitions, scaled expectations for different organisations, and strong support mechanisms to enable schools to meet their obligations in practice. Duty holders need practical compliance tools (such as checklists, templates and case studies), while the community requires accessible, plain-language information on rights and remedies. Together, these sets of resources would strengthen both awareness and implementation of the changes to the DDA. Due to the extra workload on schools, a staged implementation approach may be best.

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

Changing the term “reasonable adjustments”

There is broad support in the education sector for replacing “reasonable adjustments” with “adjustments” in the DDA, as recommended by the Royal Commission on Disability. The intent is to simplify the law by focusing on whether an adjustment is necessary for a student’s participation and can be implemented without causing unjustifiable hardship. This shift moves the conversation from what is “reasonable” to what is required, centring the law on the student’s needs.

However, Independent schools have raised important considerations about the practical and legal implications of this change. A key concern relates to adjustments requested by parents or external professionals that may not be supported by educational evidence or may extend beyond the functional impact of a student’s disability. In such cases, schools currently rely on the concept of “reasonableness” to guide decision-making in balancing student needs, the best interests of the student, available resources, and broader obligations. Without this qualifier, there may be increased reliance on the definition and application of “unjustifiable hardship,” which would need to be clearly articulated and consistently applied to avoid confusion.

Stakeholders are concerned that removing the word

reasonable

In a school context, these provisions would extend to online bullying and harassment that targets a student’s disability. For example, if a student creates a social media account to mock or incite hatred against a fellow student with a disability, the new provisions could provide a clear legal basis for action. The provisions would also give schools clear guidance when identifying offensive conduct by parents or other community members targeting students, their family members or staff with a disability. This would provide schools with a clearer legal framework to address and prohibit such behaviour, which can severely impact a student’s wellbeing and a school’s inclusive environment.

Teaching students about the legal and ethical implications of vilification and offensive behaviour would be an important part of a school’s strategy to create a safer and more inclusive environment.

Together, these reforms could ensure the DDA remains strong inclusive and fit for the contemporary landscape of rights protection across Australia.

5. CONCLUSION

The current DDA review is essential for modernising the law and strengthening protections for people with disability. The three major proposed changes: updating the definition of disability, replacing the restrictive comparator test with a simpler detriment test, and introducing a positive duty to eliminate discrimination are broadly supported. While the detriment test simplifies proving direct discrimination, there is a valid concern that it places the entire onus on the respondent (the school). A middle ground is necessary: the applicant should first establish detriment, then the onus should shift to the school to demonstrate that all reasonable steps were taken to prevent discrimination, thereby balancing the need for stronger protections with procedural fairness for duty holders.

To ensure successful implementation in the Independent school context, careful attention must be paid to several key areas. The removal of “reasonableness” from the definition of adjustments is not supported and requires clear definitions and guidance on what constitutes “unjustifiable hardship,”

A positive duty to eliminate discrimination must be carefully considered across all contexts and accompanied by practical resources and scaled expectations to avoid placing an unmanageable burden on schools with limited resources. To improve outcomes for people with disability and better define the responsibilities of duty holders, the DDA reforms need to strike a balance between strengthening legal protections and providing clear, practical guidance for duty holders.

ISA would be happy to discuss our submission or be involved in further consultation.

Contact details

Joanna Mackie

Director, Education a ISA redacted: s47F - Personal privacy