FAQs

Recommendation 7.1 - Provide equal access to mainstream education and enrolment

States and territories should amend education Acts (or the equivalent) to:

• create a legal entitlement for students with disability to enrol in a local mainstream school
• provide that the right to enrolment is subject only to ‘unjustifiable hardship’ in the sense used in the Disability Discrimination Act 1992 (Cth).

State and territory governments should take the following actions to prevent gatekeeping in mainstream schools:

• maintain a central record of decisions on enrolment refusal or cancellation and provide an annual report to the responsible minister for education on trends and any additional actions required to address barriers
• establish an independent review process to enable a parent or supporter of a child or young person with disability to challenge a refusal to enrol the child or young person in a school.

State and territory educational authorities should disseminate clear, accessible, transparent material for students with disability and their families on their rights, the obligations of schools relating to applications to attend a local school, and review processes.

Recommendation 7.2 - Prevent the inappropriate use of exclusionary discipline against students with disability

State and territory educational authorities should review all regulations, rules, procedures and other instruments regulating exclusionary discipline to ensure they:

• adopt the principle that education providers:
  • should avoid the use of exclusionary discipline on students with disability unless exclusion is necessary as a last resort to avert the risk of serious harm to the student, other students or staff
  • in considering the use of exclusionary discipline, consider the student’s disability, needs and age, and the particular effects of exclusionary discipline for young children
  • require steps to be taken before exclusion to ensure an individual behaviour plan and reasonable adjustments have been implemented for the student, including consultation with the student and their family, carers or supporters.
• include a duty for principals to report the repeated use of exclusionary discipline involving a student with disability to an escalation point within educational authorities for independent case management
• include a robust review or appeals process for students with disability and their families or carers and supporters
• ensure students with disability have access to educational materials appropriate to their educational and behavioural needs while subject to exclusionary discipline
• support students with disability to re-engage in education post exclusion.

State and territory educational authorities should review provisions governing the registration of non-government schools to impose obligations relating to exclusionary discipline in the non-government sector that are commensurate with those of the government sector.

Section 22(2)(b) of the Disability Discrimination Act 1992 (Cth) should be amended to cover ‘suspension and exclusion’ as well as expulsions.

The key changes include:

• amending the objects and principles of the Act to reflect that education and children’s services are to be inclusive and to update a reference to reflect that discrimination on the basis of disability is unlawful (replacing the existing reference to mental or physical impairment)
• removing the Chief Executive’s power to direct a child be enrolled in a specified government school, including a special school (a government school established for children who require some special form of education, treatment or care) on the basis of the child’s disability 
• prohibiting refusal of enrolment on the basis of disability unless it would cause unjustifiable hardship to the school
• requiring that non-government schools have policies on the use of exclusionary discipline
• expanding matters principals must consider before suspending, excluding or expelling a student and applying those requirements to non-government schools
• requiring government and non-government school principals to report annually to the Minister de-identified information on any refusal or cancellation of enrolment of children with disability and the use of exclusionary discipline for students with disability.

The Act does not currently include a definition of disability. 

As the new provisions include many references to disability, it’s important to be clear about what is meant by the term disability when it is used in the Act.

The Amendment Bill will insert into the Act a new definition of disability which aligns with the definition in the Commonwealth Disability Discrimination Act 1992 (DDA). This will ensure that the new provisions will be underpinned by a recognized and contemporary understanding of disability. 

Clause 7 of the Amendment Bill sets out that in determining whether something would impose an unjustifiable hardship on a school, all of the relevant circumstances of the particular case must be taken into account by the principal, including: 

(a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;

Example— One of the circumstances covered by paragraph (a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.

(b) the effect of the disability of any child concerned;

(c) the financial circumstances, and the estimated amount of expenditure required to be made, by the school;

(d) the availability of financial and other assistance to the school

(e) any relevant action plans given to the Australian Human Rights Commission under section 64 of the Disability Discrimination Act 1992 of the Commonwealth.

This provision of the Bill aligns with the concept of unjustifiable hardship that is found in the Disability Discrimination Act 1992 (DDA).

The wording of this new object of the Act has been informed by Article 24 of the Convention on the Rights of Persons with Disabilities. 

Currently the Regulations set out that, before suspending, excluding or expelling a child from a government school, a government school principal must have regard to:

(a) the severity and frequency of the misbehaviour of the student; and 

(b) the student's prior record of behaviour and response to previous sanctions (if any); and 

(c) if relevant, the extent to which adjustments have been made to support the participation of that student, or students with a disability generally, at the school; and 

(d) any other relevant matter.

The Amendment Regulations will extend the list of matters that a principal must consider to include:

• the particular needs of the student; and
• the age of the student and the particular effects that exclusionary discipline may have on the student because of their age; and
• whether any individual behaviour plan for the student is in place and whether the plan is being implemented; and 
• whether the student has a disability, and if so, the extent to which adjustments have been made to support the participation of that student, or students with a disability generally, at the school; and 
• whether any reasonable alternatives to suspension, exclusion or expulsion are available in the circumstances.

In accordance with the Amendment Bill and Amendment Regulations, the same matters will need to be considered by a person before suspending, excluding or expelling a student from a non-government school.

The Minister will be required to publish a report setting out consolidated information for both the government and non-government sectors. The published information will not contain any details that would identify individual students.

Information provided to the Minister under the new provisions by principals will not be subject to disclosure under the Freedom of Information Act 1991.

Some of these recommendations are already being implemented and others are being addressed together with the Catholic and independent sectors, the Australian Government and other states and territories.

Further information about South Australia’s response to the Royal Commission can be found in Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability: South Australian Response.