Submission to the 2025 Review of the Disability Discrimination Act 1992 and Disability Standards for Education 2005

Submission to the Review of the Disability Discrimination Act 1992 – Public Consultation

Prepared by: Dyslexia Victoria Support

October 2025

Contact: Heidi Gregory Founder, Dyslexia Victoria Support Vice President, SPELD Victoria Email: redacted: s47F - Personal privacy Webpage: redacted: s47F - Personal privacy

Olivia Connelly Educator and Director, Gameplan Learning Intervention and Speech Pathology Clinic Member of Dyslexia Victoria Support Email: redacted: s47F - Personal privacy

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Executive Summary

Dyslexia Victoria Support (DVS) welcomes the opportunity to contribute to the 2025 Review of the Disability Discrimination Act 1992 (DDA) and the Disability Standards for Education 2005 (DSE). Drawing on the lived experience of thousands of Victorian families, educators, and allied health professionals, this submission highlights how current legislative gaps continue to enable systemic discrimination against children with Specific Learning Difficulties (SLDs) such as dyslexia, dyscalculia, and dysgraphia.

Despite the intent of the DDA, families routinely report that their children are denied adjustments, excluded from classrooms, and told their disability is “not severe enough.” The law as currently drafted allows schools to exploit ambiguity, hide behind procedural loopholes, and shift the burden of proof onto parents. The result is predictable: inequitable access to education, prolonged disadvantage, and a cycle of complaint-driven advocacy that drains families and fails children.

Our submission proposes reforms that would bring the DDA and DSE into alignment with modern human rights and educational practice. These reforms focus on three central aims:

1. Clarity – Explicitly recognise Specific Learning Difficulties (SLDs) and fluctuating disabilities in the statutory definition, close drafting inconsistencies between the DDA and DSE, and remove the comparator test that distorts the interpretation of direct discrimination.
2. Accountability – Create enforceable duties for schools and employers to provide reasonable adjustments, mandate documentation and consultation, and ensure courts and regulators can act on evidence of systemic non-compliance.
3. Protection – Establish a clear civil cause of action for victimisation, prohibit restraint and seclusion except in genuine emergencies, and extend standing to parents and associates who suffer detriment because of discrimination against a child.

We further recommend that:

• All legislative interpretation be explicitly aligned with the Convention on the Rights of Persons with Disabilities (CRPD), particularly Article 24 (Right to Inclusive Education);
• “Reasonable adjustment” be defined to include assessment and planning processes such as Individual Education Plans (IEPs);
• Disability Action Plans be mandatory, time-limited (maximum 2 years), and required to include SMART goals linked to a new positive duty to eliminate discrimination; and
• Compliance with the DSE should no longer provide an automatic defence where the Standards are inconsistent with the DDA or human-rights obligations.

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The reforms proposed by DVS are not theoretical—they are the changes families need to see in classrooms every day. A rights-based framework only matters if it is enforceable. Australia’s education system cannot claim to be inclusive while its laws allow children with disability to be left behind, suspended, or restrained in the name of “reasonableness.”

Our message is simple: the DDA must protect children before harm occurs, not after. Legislative clarity, accountability, and enforceable duties will turn the promise of inclusion into practice.

DVS endorses the submission by the Disability Discrimination Legal Service and in addition requests the following be considered.

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Introduction

Dyslexia Victoria Support (DVS) is a community-led organisation supporting thousands of families across Victoria and Australia. We are parent advocates, educators, and allied health professionals who witness daily the barriers faced by children with disability, particularly those with Specific Learning Difficulties (SLDs) such as dyslexia, dyscalculia, and dysgraphia.

Despite the intent of the Disability Discrimination Act 1992 (DDA) and the Disability Standards for Education (DSE), children with disability remain systematically excluded from equitable participation in education. Families are told their children are “not disabled enough,” adjustments are delayed or denied, and parents are forced to escalate complaints simply to secure rights already guaranteed in law. These failures have lasting consequences: children’s learning is disrupted, mental health deteriorates, and life opportunities narrow.

This submission responds directly to the Consultation Questions set out in the Issues Paper. For each question, we:

• Draw on lived experience evidence from families across our network.
• Highlight systemic issues raised in our Key Talking Points (2025).
• Support recommendations with Australian case law, legislative analysis, and references to the Convention on the Rights of Persons with Disabilities (CRPD) and the Convention on the Rights of the Child (CRC).
• Pair each DDA reform with the necessary DSE operational reforms, ensuring protections are not just theoretical but enforceable in schools.

Our submission centres on school-aged children, who are especially vulnerable when rights are denied. We call for reforms that protect children before harm occurs, rather than forcing families into adversarial, costly, and lengthy complaint processes.

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DVS Response to Consultation Questions

Definition of Disability

DVS Response:

Many children with dyslexia, dyscalculia, and other Specific Learning Difficulties (SLD) already meet the DDA’s definition of disability—but schools routinely dismiss these needs as “not severe enough.” A stronger legislative link is needed to prevent systemic exclusion through under-recognition.

Policy and Legal Recommendations:

• DDA Reform: Amend s4 to explicitly include SLDs (dyslexia, dyscalculia, dysgraphia) and fluctuating/episodic impairments. Clarify that the test is functional impact on education, not medical diagnosis.
• DSE Reform: Amend Part 1 – Definitions to mirror this language. Guidance must direct schools that learning differences requiring adjustments fall under the Act.
• Case Law (School): Purvis v NSW (2003) 217 CLR 92 confirms manifestations are part of disability. Yet in practice, schools disconnect behaviours from the disability, excluding students.
• Policy Note: Explicit statutory recognition of SLDs would ensure consistency, prevent schools from exploiting ambiguity, and bring the DDA/DSE into alignment with the CRPD’s rights-based definition of disability.

Intersectionality

DVS Response:

Children with disability who also experience disadvantage on other grounds—such as being Aboriginal, culturally and linguistically diverse, or female—face compounded barriers in education. Families report that these intersections often increase the likelihood of exclusion, under-identification, and lack of adjustments, but current frameworks silo discrimination claims.

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DDA/DSE Reform Recommendations:

• DDA Reform: Amend the DDA to permit intersectional claims, allowing disability to be considered alongside other protected attributes.
• Alternative Pathway: If consolidation of Commonwealth anti-discrimination laws is revived, ensure disability-specific protections are not diluted.
• DSE Reform: Insert guidance requiring schools to proactively identify and address compounded disadvantage in enrolment, curriculum, and behaviour policies.
• Policy Note: Intersectionality should be explicitly recognised in adjustment planning processes, requiring consultation with families and students about overlapping barriers.

Amending the definition of direct discrimination

Consultation Questions Response for 5 and 6

The comparator test should be removed.

DVS Response:

Families repeatedly tell us that schools use technicalities to deny responsibility. Parents are told, “other children would also struggle under these rules,” which ignores that their child’s behaviour or learning profile stems from disability. The comparator test allows schools to justify exclusion by creating hypotheticals that bear no resemblance to the actual child. Parents also face impossible evidentiary burdens, as schools control the records of adjustments, suspensions, and internal processes.

DDA/DSE Reform Recommendations:

• DDA Reform:
  • Remove the comparator test from s5.
  • Replace with a causation test: was the child treated unfavourably because of their disability, including its manifestations?
  • Introduce a reverse onus of proof: once disadvantage is shown, the school must prove its conduct was not discriminatory.
• DSE Reform:
  • Amend Part 5.2 Participation Standards to reflect the causation approach.
  • Require schools to document reasons for refusals or limitations of adjustments, making them available in disputes.

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• Case Law Anchors:
  • School Case: Purvis v NSW (2003) 217 CLR 92 (HCA) — behaviour as manifestation of disability wrongly excluded.
  • School Case: Trindall v ACT Dept of Education [2005] FCA 935 — comparator reasoning allowed school to escape adjustment duty.
• Policy Note: Removal of the comparator test and shift in burden of proof would align with the Equal Opportunity Act 2010 (Vic) model, which provides clearer and more accessible protection.

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Amending the definition of indirect discrimination

DVS Response:

Families often face blanket policies that disadvantage their children — such as strict timed assessments, uniform behaviour codes, or one-size-fits-all homework requirements. Schools frequently justify these practices as “reasonable” because they apply to everyone, ignoring the fact that they create disproportionate barriers for children with disability. Parents describe feeling powerless against policies that are defended as reasonable even when the impact is clearly exclusionary.

DDA/DSE Reform Recommendations:

• DDA Reform:
  • Replace the current “reasonableness” test in s6 with a proportionality test: legitimate aim, rational connection, least restrictive means.
  • Clarify that “blanket” rules which disadvantage students with disability will not satisfy proportionality unless genuinely unavoidable.
• DSE Reform:
  • Amend curriculum and participation standards to reflect proportionality.
  • Require schools to demonstrate that less restrictive alternatives were considered and trialled before imposing conditions.
• Policy Note: This shift would align federal law with Victoria’s Equal Opportunity Act 2010 and create a nationally consistent, child-rights-based standard.

Interpreting the Disability Discrimination Act in line with the Convention on the Rights of Persons with Disabilities

Consultation Questions 10 & 11

DDA/DSE Reform Recommendations:

• DDA Reform:
  • Insert a new objects clause requiring that the Act be interpreted consistently with the CRPD.
  • Require courts and tribunals to adopt a beneficial interpretation in line with international obligations.
• DSE Reform:

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• Redraft the Standards with explicit reference to CRPD art.24 (right to inclusive education).
  • Ensure that all duties in the Standards (enrolment, participation, curriculum, support services) are framed to uphold CRPD principles of inclusion, equality, and participation.
• Policy Note: Aligning the DDA and DSE with the CRPD would bring Australia into step with its international commitments and prevent narrow interpretations (as seen in cases like Purvis), ensuring that education law reflects human rights obligations.

Positive duty for duty holders to eliminate discrimination

Consultation Questions 12 & 15.

Implementation Note:

The effectiveness of a new positive duty will depend on adequate Commonwealth resourcing of the Australian Human Rights Commission (AHRC). Without sufficient capacity for monitoring and enforcement, such duties risk being symbolic rather than transformative. The AHRC must be funded to undertake proactive compliance audits, education, and investigations to ensure that duty holders are meeting their obligations in practice.

Strengthening the duty to provide adjustments

Consultation Questions 16-18

DVS Response:

Parents consistently report that the absence of a clear, standalone duty leaves schools free to avoid making adjustments altogether. Families are forced to fight for years, escalating to complaints or tribunals just to secure extra time, scaffolds, or an Individual Education Plan. Even when adjustments are made, they are applied inconsistently or withdrawn without notice.

Introducing a clear duty to provide adjustments would not create negative consequences. On the contrary, it would reduce conflict by making schools’ obligations transparent and enforceable. The only “unintended consequence” parents can foresee is positive: schools would be compelled to act early and consistently, rather than waiting until children have already fallen behind.

DDA/DSE Reform Recommendations:

• DDA Reform:
  • Insert a standalone duty to provide adjustments, separate from direct/indirect discrimination.

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• Define “adjustment” in s4 to explicitly include assessment, planning, expert involvement, and student consultation.
  • Presume all adjustments are reasonable unless the school proves unjustifiable hardship.
• DSE Reform:
  • Insert a new Part 5A mirroring this definition.
  • Explicitly state that assessments (including functional behaviour assessments, literacy/numeracy testing, occupational therapy evaluations, etc.) and Individual Education Plans are themselves adjustments.
  • Require schools to document and review adjustments at set intervals, with regulator oversight.
• Access to Information: The DSE should recognise a right for students and families to access all documentation relating to assessments, planning, and adjustments. Transparent sharing of this information is critical for procedural fairness, collaboration, and ensuring that parents can effectively participate in decision-making about their child’s supports.
• Case Law Context:
  • Higher Education Case: Izzo v Australian Catholic University [2019] FCA 702 — excluded assessments and IEPs from the definition of adjustment, narrowing protection.
  • Case Commentary: Snell v State of Queensland [2011] FCA 494 — adopted a more beneficial interpretation, recognising that assessment processes can be adjustments.
  • School Case: Connor v State of Queensland (QCAT, 2020) — illustrates how schools deny adjustments when they are not compelled to investigate needs.
  • Employment Analogy: Watts v Australian Postal Corporation [2014] FCA 370 — Mortimer J confirmed that adjustments should be presumed reasonable unless hardship proven.
• Policy Note: Amending both the DDA and DSE to include assessment and planning as adjustments will close a major loophole, prevent schools from avoiding obligations through inaction, and ensure that children receive timely and evidence-based supports.

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Definition of and considerations for unjustifiable hardship

Consultation Question 19

DVS Response:

Families are often told that providing adjustments would be too expensive or inconvenient, particularly in independent schools. Parents report being told, “we don’t have the resources for that” or “you chose this school knowing our limitations.” These excuses deny children access to supports they are entitled to and force families into adversarial processes. For many, this is experienced as both discriminatory and shaming.

DDA/DSE Reform Recommendations:

• DDA Reform:
  • Clarify in s11 that unjustifiable hardship does not include inconvenience, limited resourcing, or parental choice of school.
  • Require respondents to provide documented evidence when invoking hardship.
  • Align with recommendations of the Disability Royal Commission to restrict the misuse of hardship defences.
• DSE Reform:
  • Require schools claiming hardship to lodge evidence with regulators and notify families in writing.
  • Explicitly state that hardship cannot be claimed where adjustments are minor, low-cost, or already funded through existing school resources.
• Case Law Note: Watts v Australia Post [2014] FCA 370 confirmed that adjustments are to be presumed reasonable unless genuine hardship is demonstrated. Education providers should not be allowed to rely on mere assertions of cost or inconvenience.

Expanding the Factors Considered by Employers – Inherent Requirements of Work

Consultation Questions 20 & 21

DVS Response:

While our submission is centred on school-aged children, many parents in our network are themselves people with disability and face significant barriers to employment. Families report that employers often make assumptions about their capacity without considering adjustments such as flexible hours or part-time roles. This entrenches disadvantage and compounds the challenges of raising children with disability. Mandatory consultation on

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reasonable adjustments before withholding a job offer would give families confidence that decisions are evidence-based and not rooted in bias or convenience.

DDA/DSE Reform Recommendations:

• DDA Reform:
  • Amend s15 to require employers to consult with applicants and employees with disability about reasonable adjustments before concluding that inherent requirements cannot be met.
  • Clarify that offering part-time or flexible arrangements is a form of reasonable adjustment where it avoids unjustifiable hardship.
  • Reject any amendment that narrows the scope of protection (such as the proposed underlined wording in s15).
• DSE Implications (schools context):
  • While primarily an employment issue, this principle applies equally to schools in their role as employers. School staff with disability should have the same rights to adjustments, setting a stronger culture of inclusion that flows through to students.
• Policy Note: Aligns with broader anti-discrimination principles under the Fair Work Act and strengthens Australia’s compliance with CRPD art.27 (right to work and employment).

Exclusionary Discipline and Suspension

Consultation Questions 23 - 26

DVS Response

Parents report that exclusionary discipline is one of the most distressing aspects of schooling. Families are frequently called to collect their children early without paperwork, suspensions are issued without investigation, and expulsions occur without any meaningful effort to put supports in place. These practices leave children traumatised and reinforce the perception that they are the problem, when in fact their needs have not been met. Exclusion damages children’s self-esteem, worsens behaviours, and disrupts family life — many parents describe being forced to give up work to supervise children excluded from school.

DDA/DSE Reform Recommendations:

• DDA Reform:
  • Prohibit discriminatory exclusionary practices, including informal suspensions, restricted attendance, and seclusion.

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• Require schools to demonstrate that reasonable adjustments were attempted and failed before exclusion or suspension can be considered.
  • Mandate that exclusionary responses be a last resort, permitted only where adjustments and proactive supports have been exhausted.
• DSE Reform:
  • Amend Part 5 – Participation to require:
    • Engagement of a qualified behavioural expert and completion of a Functional Behaviour Assessment (FBA).
    • Formation of a multidisciplinary support team, including the student and family.
    • A documented plan of preventative supports and adjustments.
  • Require all incidents of exclusion, seclusion, or restraint to be formally reported to the regulator.
• Case Law Anchor: Connor v Queensland Dept of Education (QCAT, 2020) illustrates how schools exclude students without first providing reasonable adjustments, exposing systemic failure.
• Policy Note: Punitive responses entrench disadvantage and contradict the CRPD and CRC. A mandated preventative framework would ensure schools address behaviours as manifestations of disability, not misconduct.

Offensive Behaviour and Vilification Protections

Consultation Questions 27-30

DVS Response:

Families in our network report that children with disability are frequently subjected to ridicule, bullying, and degrading treatment—both from peers and, at times, from staff—based on their disability. Parents describe experiences where harmful jokes, mocking of learning differences, and public comparisons to “normal” students are dismissed as “banter” rather than recognised as discrimination. The absence of an explicit vilification or offensive conduct provision in the DDA means these behaviours often fall through the cracks of existing law. Current remedies rely on proving direct discrimination or harassment, which can be difficult where conduct is widespread or systemic.

Strong vilification protections are particularly important in schools, where a child’s sense of belonging and self-worth are shaped by daily interactions. Without a clear statutory

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prohibition, schools lack both deterrence and accountability mechanisms to prevent hostile or humiliating treatment of students with disability.

DDA/DSE Reform Recommendations:

DDA Reform:

• Insert a new provision mirroring s 18C of the Racial Discrimination Act 1975 (Cth), making it unlawful to publicly act or speak in a manner that is reasonably likely to offend, insult, humiliate, or intimidate a person or group on the basis of disability.
• Ensure the provision applies across all areas of public life covered by the DDA, including education, employment, and the provision of goods and services.
• Include an accompanying defence consistent with s 18D for acts done reasonably and in good faith for artistic, academic, or public-interest purposes.

DSE Reform:

• Require education providers to adopt anti-vilification and anti-bullying policies explicitly referencing disability.
• Mandate staff training on identifying and preventing discriminatory language or conduct towards students with disability.
• Require schools to maintain clear reporting and response procedures for incidents of disability-based harassment or vilification.

Policy Note: Embedding vilification protections within the DDA would harmonise disability law with racial and sexual discrimination frameworks, closing a major legislative gap. Explicitly prohibiting public humiliation or ridicule would reinforce Australia’s obligations under CRPD art. 8 (Awareness-raising) and art. 16 (Freedom from exploitation, violence, and abuse).

Exemptions

Consultation Questions 33-37

DVS Response:

Families frequently experience exemptions being used in education to justify the denial of adjustments. Parents are told that schools cannot comply with the DDA because of sector-based rules, funding arrangements, or religious ethos. These exemptions are seen by families as a loophole that undermines children’s rights and shifts the burden of advocacy back onto parents. When exemptions are applied too broadly or repeatedly, they signal to schools that they can ignore their responsibilities with little consequence.

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DDA/DSE Reform Recommendations:

• DDA Reform:
  • Narrow the scope of the “Acts done under statutory authority” exemption so the DDA is not automatically overridden by other legislation.
  • Limit exemptions to a maximum of two applications, after which compliance must be demonstrated.
  • Require applicants for repeat exemptions to provide evidence of genuine efforts to minimise impact and progress toward compliance.
  • Clarify that exemptions may only be granted in truly exceptional cases, where immediate compliance is not practically achievable.
  • Require the AHRC to apply rigorous scrutiny to exemption applications, with published reasons addressing why compliance is not possible.
• DSE Reform:
  • Ensure that education providers cannot rely on broad or repeat exemptions to avoid obligations under the Standards.
  • Require any education provider seeking an exemption to provide documented evidence of compliance efforts and to demonstrate why full compliance cannot be achieved within the exemption period.

Assistance Animals

Consultation Questions 38-40:

DVS Response:

Families frequently tell us that schools dispute the legitimacy of assistance animals, requesting paperwork that does not exist or refusing to allow animals that are still in training. This creates barriers for children who rely on animals for emotional regulation, safety, or participation. For neurodivergent students in particular, animals often provide a calming anchor that makes schooling possible. Without national clarity, families are left to negotiate case by case with principals, which is exhausting and destabilising for students.

DDA/DSE Reform Recommendations:

• DDA Reform:
  • Insert a clear definition of “assistance animal” in s4, supported by regulation.
  • Recognise animals in training, with reasonable evidence of a training program.

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• Introduce the category of “authorised companion animals” for therapeutic benefit (e.g., for PTSD, anxiety, or neurodivergence).
  • Require a public access test for animals but ensure it is not limited to prescribed training organisations, to allow for self-training.
• DSE Reform (education context):
  • Require schools to recognise both assistance animals and animals in training, provided hygiene and behaviour standards are met.
  • Oblige schools to include assistance animal use in adjustment planning and consult with families about implementation.
• Policy Note: Clear standards would end the current patchwork of responses across schools, reduce disputes between families and principals, and ensure compliance with CRPD principles of recognising supports chosen by people with disability.

Disability Action Plans

Consultation Questions 41-44:

DVS Response:

Families consistently tell us that Disability Action Plans (DAPs) make little difference in practice. Parents rarely see evidence that schools or education departments are following through on commitments, and there are no clear consequences when plans are vague or ignored. Without enforceability, DAPs are perceived as public relations documents rather than genuine tools for accountability. Parents emphasise that progress must be visible and measurable — otherwise, systemic issues in schools remain hidden while children continue to experience barriers year after year.

DDA/DSE Reform Recommendations:

• DDA Reform:
  • Mandate that all Disability Action Plans include SMART goals and a clear link to the organisation’s obligations under a new positive duty to eliminate discrimination.
  • Provide the Australian Human Rights Commission (AHRC) with power to reject inadequate action plans and require resubmission.
  • Require that all action plans be valid for a maximum of 2 years, after which they must be reviewed and re-approved.

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• Clarify that unjustifiable hardship remains a defence, but require organisations claiming hardship to show evidence of why particular SMART goals cannot be met.

Transparency and Public Accountability: To drive measurable change, Disability Action Plans should include requirements for public reporting. Organisations subject to the DDA should publish disaggregated data on adjustments, complaints, and progress against SMART goals. This transparency would enable families, regulators, and Parliament to monitor compliance and hold duty holders accountable for ongoing improvement.

• DSE Reform:
  • Require all schools and education providers to develop Disability Action Plans as part of their registration and compliance framework.
  • Plans must be linked to audits of accessibility and inclusion, with specific actions addressing curriculum access, adjustment processes, and exclusionary discipline.
  • Mandate that plans are published publicly so families can monitor commitments and progress.
• Policy Note: Embedding SMART goals, enforceability, and a two-year validity period will transform DAPs from symbolic statements into binding accountability tools. This will give families confidence that education providers are not only aware of their obligations but are actively monitored on implementation.

Broadening s22 to Include Parents of Students with Disabilities

DVS Response:

Parents frequently experience financial, professional, and emotional consequences when schools fail to provide adjustments. Many are forced to reduce work hours, change jobs, or leave employment entirely in order to supervise children excluded from school, attend frequent meetings, or arrange private supports. Current DDA provisions do not allow parents to seek remedies for these losses, even when they directly flow from unlawful discrimination against their child. This leaves families carrying a disproportionate burden and allows schools to externalise the cost of discrimination onto households. Parents describe feeling invisible in the legal process, despite being the ones who shoulder the most significant consequences.

DDA/DSE Reform Recommendations:

• DDA Reform:

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o Insert a new subsection s22(2B), as proposed in the consultation response, creating a cause of action for parents (and other associates) who suffer detriment due to discrimination against a child.

     o  Extend standing to carers and siblings, consistent with the DDA’s existing
           recognition of “associates” under s7.

     o  Specify that detriment includes economic loss, loss of opportunity, and
          emotional/psychological harm directly resulting from unlawful discrimination.

• DSE Reform:

     o  Require schools to consult not only with students but also with parents/carers
         as part of adjustment planning, recognising that their economic and personal
           interests are affected.
  
     o  Mandate documentation of parental consultation and acknowledgement of the
         broader impact of exclusionary practices on families.
  

• Policy Note: These reforms would bring education law into line with principles of access to justice under the CRPD and CRC, recognising that discrimination against children reverberates across families. Providing parents with standing would strengthen accountability and ensure schools cannot externalise the costs of unlawful exclusion.

Restraint and Seclusion of Students with Disabilities

DVS Response:

Parents report that restraint and seclusion are used in schools not as measures of last resort but as default responses to behaviours of concern, even where no immediate danger is present. Families describe children being locked in rooms, held down by staff, or isolated from peers — often repeatedly and without independent oversight. These experiences leave children traumatised, undermine trust in education, and in some cases lead to school refusal. Parents emphasise that restrictive practices are not a neutral disciplinary measure: they are a denial of dignity and a breach of human rights.

DDA/DSE Reform Recommendations:

• DDA Reform:

     o   Insert a new subsection into s22(2): “*It is unlawful for an educational authority
           to subject a student to restraint or seclusion, except in circumstances where
        such action is immediately necessary to prevent imminent serious physical
         harm, and where all reasonable adjustments and preventative supports have
        been attempted and documented.*”
  

• Prohibit the use of seclusion outright.
• Require schools to report any use of restraint to the AHRC or relevant regulator, with independent oversight.
• Clarify that unjustifiable hardship cannot be relied upon unless significant expert supports had already been implemented.

• DSE Reform:

  • Amend Part 5 (Participation Standards) to:

    • Prohibit seclusion.

    • Strictly limit restraint to circumstances of imminent serious harm.

    • Mandate Functional Behaviour Assessments, expert consultation, and multidisciplinary planning when behaviours of concern arise.

    • Require immediate parental notification and written documentation of any restrictive practice.

• Royal Commission Anchor:

  • The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023) found that restraint and seclusion are disproportionately used against students with disability, cause significant trauma, and should be phased out or strictly limited. The Commission recommended legislative reform to prohibit seclusion and limit restraint to emergencies.

  • These findings align with the Charter of Human Rights and Responsibilities Act 2006 (Vic) and international obligations under the CRPD (art.15 – protection from cruel, inhuman, or degrading treatment; art.24 – right to inclusive education) and CRC (art.19 – protection from all forms of violence).

• Policy Note: Incorporating the Royal Commission’s recommendations into the DDA and DSE will ensure national consistency, prevent reliance on permissive state regulations (e.g., Vic Reg 25), and safeguard students’ human rights in education settings.

The Disability Standards for Education and Their Lack of Consistency with the DDA

DVS Response:

Parents describe the DSE as meaningless in practice. Schools regularly point to compliance with the DSE as a shield, even when children are denied adjustments, excluded, or segregated. Families attempting to pursue complaints are told that if a school has followed

the DSE “on paper,” then no unlawful discrimination has occurred — regardless of the harm to the child. This undermines trust in the system and leaves families feeling that the Standards protect schools rather than students. The exclusion of students in segregated schools is particularly devastating: parents in our network report that their children are denied access to the curriculum and isolated from peers, but legal avenues are blocked because of the DSE’s drafting errors. Families feel trapped in a system where the very instrument meant to protect their children actively undermines their rights.

Training and Professional Standards:

The DSE should impose a clear obligation on education providers to ensure all staff receive accredited training in disability rights, inclusive education, and implementation of reasonable adjustments. Establishing a nationally consistent training standard would strengthen compliance, prevent inadvertent breaches, and embed inclusive practice across school systems.

DDA/DSE Reform Recommendations:

• DDA Reform:

  • Amend s32–34 to clarify that compliance with the DSE is not a complete defence where the Standards are inconsistent with the DDA or international obligations.

  • Require that all subordinate legislation under the DDA undergo a consistency audit with the CRPD.

• DSE Reform:

  • 1. Reasonable Adjustments: Align the definition of “reasonable adjustment” with Watts v Australian Postal Corporation [2014] FCA 370, which held that adjustments should be presumed reasonable unless unjustifiable hardship is proven. Remove provisions that empower schools as sole decision-makers without external oversight.
  • 2. Comparator Test: Amend participation standards to replace “a student without a disability” with “the student without the disability in question,” ensuring consistency with s5 of the DDA. This will prevent schools from relying on a narrower comparator to avoid liability.
  • 3. Segregated Schools: Amend participation, enrolment, and support services standards so that comparisons can be made across institutions. Ensure that students in segregated schools are protected, with the ability to compare treatment with mainstream peers.

• Require an urgent pause and redraft of the DSE, ensuring consistency with the DDA before further reliance.

• Case Law Anchor:

  • Watts v Australia Post (2014) FCA 370 — clarified how reasonable adjustments should be interpreted, highlighting inconsistency with the DSE’s narrower drafting.

  • Purvis v NSW (2003) 217 CLR 92 — demonstrates the risks of comparator tests that exclude behaviours linked to disability, reinforcing the need for alignment between the DDA and DSE.

  • Emerging tribunal cases (e.g., Connor v State of Queensland (QCAT, 2020)) show how schools exploit gaps in the Standards to deny adjustments.

• Policy Note: The current misalignment allows respondents to weaponise the Standards as a shield, undermining the DDA’s purpose. Urgent reform is needed to ensure the DSE functions as intended: to support, not weaken, the substantive rights guaranteed by the Act.

Unclear Whether Federal Courts Have the Jurisdictional Power to Hear Victimisation Complaints

DVS Response:

Parents frequently describe being victimised after raising concerns about their child’s exclusion or mistreatment at school. Retaliation takes many forms — from the withdrawal of previously agreed adjustments, to reduced communication, to suggestions that a child is no longer “a good fit” for the school. For families already under immense pressure, the risk of making a complaint is compounded by fear of reprisal. Many parents decide not to lodge complaints at all, knowing their child must continue to attend school under the care of those they have challenged. The lack of a clear, civil cause of action for victimisation leaves families unprotected and undermines the purpose of the DDA.

DDA/DSE Reform Recommendations:

• DDA Reform:

  • Amend the DDA to make victimisation an express civil cause of action, not only a criminal offence.

  • Insert a provision into Part 2 (Prohibition of Discrimination) that empowers the Federal Court and Federal Circuit Court to hear and remedy victimisation claims.

• Provide for remedies including damages, injunctions, and reinstatement of adjustments where retaliation occurs.

• DSE Reform:

  • Insert explicit protections against retaliation into the Standards, requiring schools to:

    • Maintain all existing adjustments during and after a complaint.

    • Document any changes to supports and justify them in writing.

    • Train staff in anti-victimisation obligations and the consequences of breaching them.

• Case Law Anchors:

  • Dye v Commonwealth Securities Ltd (No 2) [2007] FCAFC 77 — recognised that victimisation provisions under the SDA could be treated as a civil cause of action.

  • Walker v State of Victoria [2011] FCA 258 — highlighted judicial uncertainty and lack of legislative clarity.

  • Tropoulos v Journey Lawyers [2021] FCA 576 — confirmed the issue remains unresolved, undermining confidence in the law.

• Policy Note: Other jurisdictions, such as the Equal Opportunity Act 2010 (Vic), already provide clear civil remedies for victimisation. Amending the DDA would harmonise protections nationally, restore confidence in the complaints process, and ensure children with disability and their families can raise issues without fear of reprisal.

Related Legislative Context — Complaints Process and Timelines:

DVS notes that significant delays in complaint resolution under the current system undermine confidence in the DDA’s enforcement framework. While changes to complaint-handling processes and timeframes fall under the Australian Human Rights Commission Act 1986 (Cth) rather than the DDA itself, we emphasise that timely resolution is essential for access to justice. The AHRC must be appropriately resourced and supported to meet statutory timelines and manage increased demand arising from a strengthened DDA.

Conclusion

The Disability Discrimination Act 1992 was designed to ensure equality and dignity for Australians with disability. Yet, more than thirty years later, the Act and its companion Standards still fail to deliver that promise for many children with Specific Learning Difficulties (SLDs) such as dyslexia, dyscalculia, and dysgraphia.

Families continue to face systems that minimise disability, delay adjustments, and rely on technical loopholes rather than the spirit of inclusion. The evidence from parents, educators, and allied health professionals in our network demonstrates that the DDA, as currently interpreted, does not adequately protect children from exclusion or discrimination in education.

This review provides an opportunity to close those gaps. Reform must prioritise three guiding principles:

1. Clarity — Recognise SLDs explicitly within the definition of disability and remove ambiguity that allows schools to deny responsibility.

2. Accountability — Create enforceable duties to provide reasonable adjustments, supported by mandatory documentation, oversight, and genuine consultation.

3. Protection — Safeguard children and families through explicit prohibitions on restraint, seclusion, and victimisation, ensuring that rights are actionable, not theoretical.

The DDA and the Disability Standards for Education must be realigned with Australia’s obligations under the Convention on the Rights of Persons with Disabilities (CRPD) and the Convention on the Rights of the Child (CRC). This means shifting from a reactive, complaint- based system to a proactive, rights-based framework that prevents harm before it occurs.

Legislative reform alone will not create inclusion—but it is the foundation on which inclusion depends. A modernised DDA, supported by consistent Standards and effective enforcement, would move Australia from aspiration to accountability.

Dyslexia Victoria Support urges the Commonwealth to act decisively: to strengthen the DDA so that no child’s education, wellbeing, or future is limited by outdated definitions or procedural loopholes. Every child deserves an education system that sees their potential, not their difference.

Dyslexia Victoria Support welcomes the opportunity to contribute further as reforms progress. We remain committed to working collaboratively with the Commonwealth, education authorities, and allied health professionals to ensure that legislative change translates into real-world equity for students with learning difficulties.

References

Cases

• Connor v Queensland Department of Education [2020] QCAT (unreported).

• Dye v Commonwealth Securities Ltd (No 2) [2007] FCAFC 77.

• Izzo v Australian Catholic University [2019] FCA 702.

• Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92.

• Snell v State of Queensland [2011] FCA 494.

• Tropoulos v Journey Lawyers Pty Ltd [2021] FCA 576.

• Trindall v Australian Capital Territory Department of Education [2005] FCA 935.

• Walker v State of Victoria [2011] FCA 258.

• Watts v Australian Postal Corporation [2014] FCA 370.

Legislation

• Charter of Human Rights and Responsibilities Act 2006 (Vic).

• Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008).

• Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

• Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 11, 22, 32–34, 122.

• Disability Standards for Education 2005 (Cth) Pt 5.2, Pt 7.2.

• Education and Training Reform Act 2006 (Vic).

• Education and Training Reform Regulations 2017 (Vic) reg 25.

• Equal Opportunity Act 2010 (Vic) ss 44–45.

• Fair Work Act 2009 (Cth).

Reports and Reviews

• Australian Human Rights Commission, Issues Paper: Review of the Disability Discrimination Act 1992 (Cth) (2023).

• Dyslexia Victoria Support, Submission to the Independent Review of the Victorian Curriculum and Assessment Authority (VCAA): Reforming the Special Examination Arrangements Process (2025).

• Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report (2023).

• Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Education and Learning Report (Volume 5) (2023).

• United Nations Committee on the Rights of Persons with Disabilities, General Comment No 4: Article 24 – Right to Inclusive Education (2016).