In this study, we study present an analysis of Australia's national legislation governing the education of students with disability and evaluate the degree to which it upholds students' right to an inclusive education in two different ways. First, we present an examination of the alignment between legislation and obligations under the "Convention on the Rights of Persons with Disability." Second, we examine the degree of protection of this right through the findings from a national survey on schools' compliance with the "Disability Discrimination Act 1992" and the "Disability Standards for Education 2005." Our study shows these legislative instruments are inadequate for protecting the human right of students with disability to an inclusive education and ineffective at countering discrimination in education within Australian schools. Proposed changes to address these concerns are presented.