The Commonwealth Attorney General has announced a review into the Disability Discrimination Act 1992, and has released an Issues Paper outlining the reforms being considered (https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/australias-anti-discrimination-law/review-disability-discrimination-act). These proposed reforms follow the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Disability Royal Commission). The Disability Royal Commission made 22 recommendations, and in response, the Commonwealth Government committed to reviewing the Disability Discrimination Act to strengthen protections and ensure the Act remains fit for purpose.
The proposed amendments include:
- Changing the terminology around disability and neurodiversity, to remove negative connotations (such as malfunction, malformation, disfigurement, disturbed and impairment).
- Amending the definition of Direct Discrimination to remove the comparator test, and instead require an assessment of whether the individual as been treated less favourably because of their disability. In our experience, Schools rely on the comparator test (following the High Court decision of Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92), in being able to demonstrate that a student has not been treated differently to how another student would have been treated in the same circumstances (particularly in the context of harmful behaviours). Given that “disability” includes behaviour that is a symptom or manifestation of the disability, a student whose enrolment is terminated because of harmful behaviour will arguably have been treated unfavourably “because of the disability”, and the School will not be able to argue that the student has been treated no differently to another student in the same circumstances.
- Amending the definition of “Indirect Discrimination”, to:
- remove the “reasonableness” requirement. It is ordinarily not indirect discrimination where the term or condition being imposed is a reasonable requirement (i.e. the School Policy being applied, such as the Behaviour Management Policy/Code of Conduct, is a reasonable policy to apply). Removing this requirement means that the School will need to rely on a defence of Unjustifiable Hardship. The alternative approach suggested in the Consultation Paper is to retain the “reasonableness” element, but provide guidance on factors relevant to determining reasonableness, or by including a “legitimate and proportionate” test (i.e. that the Policy is legitimate and proportionate in the circumstances).
- Removing the requirement for the individual to prove that they are “not able to comply” with the term or condition.
- Shifting the burden of proof to the School to prove that it has not discriminated against the individual (this is similar to the situation under the Fair Work Act). The rationale is that the School will have the evidence to prove the reason for the conduct, and should bear the onus of proof.
- Introducing a Positive Duty for duty holders (i.e. Schools) to eliminate discrimination.
- Amending the “unjustifiable hardship” exemption, by:
- Removing the references to “reasonable adjustments” in the definitions of Direct and Indirect Discrimination (where the individual must prove that the school has not made reasonable adjustments to accommodate their disability);
- Imposing a stand-alone duty on Duty Holders (i.e. schools) to make adjustments to accommodate the individual’s disability, unless the adjustment would impose an unjustifiable hardship;
- In determining unjustifiable hardship, to also consider what consultation has occurred with the individual/student, and what alternative options were available to remove or reduce the hardship;
- Requiring Duty Holders to document factors they considered and give reasons for the unjustifiable hardship;
- Alternatively, redefining “unjustifiable hardship” to include the benefit to the individual/student being outweighed by the detriment and cost to the school.
- Extending the operation of discrimination in the school context to also include discipline and suspension. The Act already references discrimination in education as including “denying or limiting access to a benefit” or “subjecting the student to any other detriment”, and discipline or suspension, or any other form of exclusion, would likely come within these two references. By including “suspension” and “discipline”, it would ensure that Schools turn their minds to disability discrimination when making these decisions.
There is an Education Roundtable Consultation being held on 10 September, which Schools can register online to attend. Schools can also submit a submission by 24 October 2025.
The team at Vocare Law are specialist Education solicitors. Please don’t hesitate to contact our office on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au if you need assistance or advice.
This article was written by Alistair Macpherson
**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only.
