Bills

Education and Children's Services (Inclusive Education) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. B.I. BOYER (Wright—Minister for Education, Training and Skills) (15:43): I begin, of course, by thanking all those members of this place who have spoken on this bill from both sides. This has been a very big piece of work which has taken a long time to get to where we are. Obviously it flows out of the recommendations made by the national Disability Royal Commission, which in itself was a huge piece of work.

In my second reading speech I gave thanks to Neil McGoran and Anne Dunstan, in particular, from the Catholic Education and Independent School sectors for the very collaborative way in which they worked with me in what were pretty difficult circumstances given that we are doing something we have never done here before.

To the best of my knowledge, South Australia will be the first jurisdiction to have responded to the recommendations of the royal commission around transparency, in particular, regarding students with disability and students with disability who are being excluded from sites in a trisector fashion, meaning that what is proposed in this bill is the culmination of a lot of negotiation, and subsequently agreement, that was made between the three sectors. A lot of that was conducted in person with Dr McGoran, Ms Dunstan and myself.

If not for the relationship that we share between us as two sector heads and minister—and of course I acknowledge the work of the Department for Education, Martin Westwell, Darren Humphrys and his team as well—I do not think we would have been able to come to this landing. I think that is, from what I can ascertain, probably the reason that is holding back other states and territories from making a commitment like this where all three of those sectors share data in a public way on students who are not enrolled or are excluded from schooling in any way due to disability.

So I want to acknowledge the collaborative way in which the sectors have worked together on this and I am proud that it is our state that is making a real effort to do it in, as I said, a sector-blind fashion. It is, of course, true to say that students with disability face the same challenges, for the most part, regardless of where they go to school.

The intent of the disability royal commission, I think, was a noble one. It is certainly pushing us all, as those who run education systems, to make big change. South Australia has not agreed to all those recommendations, but a lot we have. Our response—insofar as it is encapsulated within this bill that we are here debating today—I think shows that South Australia shares the intent of doing better, not just in the public system but in the Catholic system and the independent system too, and that was absolutely borne out in the many conversations I had with Martin Westwell, Anne Dunstan and Neil McGoran. We all said, 'We can do better. We should use these disability royal commission recommendations, as difficult as they may be for us to accommodate, as motivation to do better for those students.'

Yes, it is true that the way we educate and care for young people with disability has come a long way in the last 50 years, but I think there is still further work that we can do. I also acknowledge many of our educators and schools—and I have visited a number in my time as minister, and I know that the member for Morialta and the member for Port Adelaide did also in their time as Minister for Education.

Recently, in fact just last week, I went to Ceduna Area School with the member for Flinders where we opened up the new disability unit. That was a great occasion and I was really pleased to be joined by the member for Flinders and Andrew Gravestocks, the principal of that fantastic school. The new facility that has been built and is open there now is wonderful and it is going to serve that community really well.

I am going to butcher the name that the member for Flinders reminded me how to pronounce the other day, but I got the opportunity to meet Mr John Duregon, who was the builder—and also was the parent of a child who went through Ceduna Area School—who did the work on the $4 million upgrade to the disability unit. I commented on my way around, when I got a little bit of a tour, that it seems the school got amazing value for the $4½ million, which is something that we do not often see because the cost of things has gone up by so much. Too often we are explaining to sites why they have not got all the things they wanted to have, but at Ceduna Area School it was a different story.

I said to John, 'You have done a fantastic job on this, but can I acknowledge you have done a great job in getting value for your school,' and John said to me, 'That's because I approached it from the point of what can I give the school, not what can I get out of this contract for myself,' which I think deserves to be noted on Hansard in this place. The kind of community spirit and spirit of giving back that Mr Duregon showed means that what they got at Ceduna Area School, for the money that this government has put in, is a lot more than it would have ordinarily or otherwise got, and that is a really wonderful thing.

I also visited recently Adelaide West Special Education Centre, the South Australian School for Vision Impaired, Kilparrin Teaching and Assessment School, Adelaide East Education Centre, the St Morris Unit at Trinity Gardens School and Adelaide North Special School, so I have made my way around the state, including regional sites as well and many schools that might not be classed as a special education setting but are mainstream schools that have a disability unit or disability classes.

I have spent time talking to students and to staff at those places, around the challenges that they face and what we can be doing better as a system. The people who work in special education settings are indeed special people. The bond that they have with their students is, I think, as strong as you would ever see between two people who might not be related by blood, if I could put it that way. It is a very special connection, and I know so too is the relationship between those educators and the parents of that child as well.

I think what we are proposing in this bill will have the support of those educators as well, in terms of us putting ourselves forward as a state that is willing to be more transparent about the way that children with disability are educated and cared for in our state. If that sometimes shows that things have happened that should not have happened, so be it. We should use that as reason for reform and for change instead of being scared of that, because the lives of these young people, who are often battling incredibly difficult circumstances—as are their educators and their families—deserve to be put first. If that sometimes comes with the risk of a bit of discomfort for the minister of the day or the government of the day, then personally I am okay with that, and I think that my two predecessors in this role would have been okay with that as well.

I do want to acknowledge the work that is happening right around the state in educating and caring for students with disability in all schools, regardless of the sector—preschool, primary school and high school. We are very lucky to have that workforce, particularly at a time when it is harder to attract and retain staff than it has ever been and in light of the fact that their jobs are often so complicated.

I hope, if we are successful with the passage of this bill through this place and then subsequently through the other place, that it will give a bit of encouragement to those staff about whom I did pick up, I must say, that sometimes they feel like they are ignored, I think. I did pick up on the fact that sometimes those who work in our special schools or sites feel like they are kind of not the main event—that all the attraction, when ministers go and visit places and do things, is in mainstream sites and that they tend to get forgotten, which is a terrible thing that we need to address.

Hopefully the priority we have put on this bill and the work we have done across sectors to come together and address some of those recommendations in a tripartite way gives a bit of comfort and encouragement to all those staff at our sites—that we absolutely do prioritise and value the work that they do, that we do acknowledge that we can do better in these areas as well, and that we are committed to doing that.

That commitment, I hope, is shown to be bipartisan in this place. We have had a very good bipartisan approach across successive governments on issues around students with disability. I acknowledge the support I have had so far from the current shadow minister and also the member for Morialta, and from the member for Port Adelaide before him. I think I have always sought to keep politics out of issues around students with disability—how they are funded and how they are cared for—and that is a very good and noble thing. It is something that I will seek to maintain as long as I do this job, and I know the member for Flinders would agree as well.

I will close my remarks by again thanking all those members in this place who made such thoughtful contributions to the second reading, including the member for Flinders. As I said, I could see on his face, last week at the Ceduna Area School, his own sense of pride in what was being done there. He knows, as someone who represents an enormous seat—where, to be perfectly frank, we have routinely, in years gone past, failed as governments in providing the adequate level of education and care that students with disability deserve. I could see how happy he was that his community was getting a facility that was going to remedy that.

There are a couple of country cabinets that I have attended in my 3½ years in this role, one at Naracoorte and one at Victor Harbor. At both those country cabinets staff from our own schools stood up to ask me a question that was essentially holding me and the government to account to do better in terms of providing disability options at those places. I am pleased to say that, in terms of Naracoorte and Victor Harbor, we have been able to do that.

There is more work to do; there are more places that do not have that. But I think in the same vein, as has happened in recent years with regional communities speaking out about a lack of childcare and childcare deserts and saying, 'Enough's enough, you've got to do something, we're not going to cop it anymore,' so, too, are regional communities and schools who have not had disability options for their families and who are instead being forced to travel hours or move out of the area entirely to get that education care. They, too, are standing up in public forums and holding ministers like myself to account by saying, 'It's time you did something.'

We are trying our level best to do that, but I would point out that in the case of Naracoorte and Victor Harbor, I am pleased that we have been able to do something. But there is a lot more work that needs to occur. Again, thanks to all those who have made contributions to this bill, and I commend it to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr TELFER: It will not be an extensive committee stage, but I think there are some important aspects which we seek some clarity on. With your indulgence, sir, in my contribution in the second reading debate, when we bumped up to the lunch break, I had not had the opportunity—and I thank the minister for bringing it up in his closing—to talk about the Ceduna Area School and the important work there that has been done.

Prior to this term, when I was a candidate and community leader, I went to the then education minister highlighting the importance of investment into our regional areas like Ceduna and that special education class in particular that the community had been calling out for. Can I thank and congratulate the minister on recognising, upon taking that role, that even in an area as far away as Ceduna it is really important to be investing in what is such important community infrastructure, really, given what it means for the whole school community to have strategic investment like this.

Can I echo the congratulations of the minister to the principal, Andrew Gravestocks, and to his whole team, because in a school like Ceduna the whole team take ownership of a facility like that. And they have been along the way helping to deliver such a high quality facility. Thanks also to the builder, Johnny Duregon. He's so well loved within the school community of Ceduna because he has delivered not just this facility but previous facilities as well either on or under budget and to a high level. What that means to the whole Ceduna Area School community is transformational, and it frees up the space for the school community library as well to continue to thrive. Thank you for your attendance minister, last week. It was a really special time that I certainly would not have missed. I made sure I was there and made it a priority.

Here on clause 1, I am talking generally about what this means for the education sector as a whole. Will the government be providing sector-specific training on applying the disability standards for education and managing enrolment decisions?

The Hon. B.I. BOYER: I thank the member for Flinders. No, that will be up to each sector to do that. I understand that we have got agreement that that is what will need to happen. But the three sectors do come together regularly across sector heads—so Mr Westwell, Ms Dunstan and Mr McGoran—to talk about things. And I will certainly be open, as long as I am doing this job, to having discussions about any assistance we need to provide centrally to help people understand those new standards.

Mr TELFER: Are there any plans to develop a standardised decision-making framework for schools?

The Hon. B.I. BOYER: I just might need a few more specifics—in relation to anything in particular?

Mr TELFER: Obviously, with this additional responsibility to try to create some consistency around—and I will unpack a little further on what you spoke about in the second reading speech around refusals and the like. So it is to provide the basis for decision-making: a guideline, standardisation, to try to make sure there is a level of across-sector consistency.

The Hon. B.I. BOYER: Fair question, member for Flinders. I understand that the bill requires that all sectors will have policies in place around exclusionary discipline. In terms of exclusion, I think the wording is that it will be commensurate in terms of how they apply to students. Within this bill we are moving towards not only a system where we are providing some transparency around those students with disability who might be captured within it but also, as you have said, more standardisation in terms of how an independent, a Catholic or a public school deals with matters of exclusion of a student with disability.

Mr TELFER: In your second reading speech you spoke a bit about capacity-based refusals. I am curious and would appreciate an explanation. You spoke about how they are treated separately from unjustifiable hardship. Can you give an explanation as to why? In answers at the committee stage, it would be a good way to be able to frame out what the expectation and the view of the minister is at the time.

The Hon. B.I. BOYER: Yes, member Flinders. In the first instance, in terms of enrolment capacity, that one is a little more straightforward than the second one, which I will get to in a moment. The first one is in regard to literally the school site being totally full, so no enrolment capacity whatsoever. In that case, a school is able to say, 'Sorry, we can't accept the enrolment because we just don't have enrolment capacity.

In terms of unjustifiable hardship, that language is drawn from the Disability Discrimination Act. Section 11 of that act talks about some things that can be considered in terms of what might amount to unjustifiable hardship for a site, separate to enrolment capacity. I am reading from that act here at section 11(1):

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

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

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

(d) the availability of financial and other assistance to the first person;

(e) any relevant action plans given to the Commission under section 64.

I think those are some examples on what I accept is a somewhat subjective test. You would have to make an assessment of whether or not the lengths that that site would have to go to and potentially the expenditure that they would have to undergo would amount to unjustifiable hardship in terms of trying to accept that enrolment. It is a pretty stringent test. A site would want to be careful in terms of trying to make a case that they could not take a child with disability under unjustifiable hardship unless they were willing to defend it under the Disability Discrimination Act.

Mr TELFER: I will certainly reflect on that in clause 7 shortly. Specifically around the capacity, what safeguards are in place to ensure that schools do not use the reasoning of capacity to avoid complex enrolments?

The Hon. B.I. BOYER: In terms of the enrolment capacity question, I think that one is an easy test. If a student was told, 'Sorry, we can't take your enrolment because we are full,' and that was proven not to be the case, which is not a very difficult thing to do—

Mr Telfer interjecting:

The Hon. B.I. BOYER: Yes, that is correct. In terms of unjustifiable hardship, I am just checking, but I am pretty sure if you made a case for not accepting an enrolment based on unjustifiable hardship and that was tested under the Disability Discrimination Act—also, there is crossover with the Australian Human Rights Commission as well. A complainant could very easily take it to that body and say, 'We believe that this education institution has not complied with that provision,' and I think there are potential penalties that flow from that. I think those two things amount to some pretty good safeguards.

Clause passed.

Clauses 2 to 6 passed.

Clause 7.

Mr TELFER: Minister, we will just unpack that a little bit, the unjustifiable hardship stuff, because I think that is really important to understand. Can you confirm that the legal burden for justification or proving unjustifiable hardship sits with each individual school?

The Hon. B.I. BOYER: Yes, I can.

Mr TELFER: Following on, what financial support or staffing support do you envision, if any, will be available to help schools meet this evidentiary burden?

The Hon. B.I. BOYER: That support will need to be found from within each sector, but I do not really envisage there should be any. It is really around transparency and reporting more than it is around any of the sectors needing to actually change their practices. I think that the spirit of the recommendations from the royal commission was in this case really around some accountability and transparency, which I think has been missing.

I do not envisage a situation where there would need to be more resources put in to, as you say, accommodate that evidentiary burden. I think it is simply a matter of schools doing what they are currently doing but providing information around any of those students who might not be able to get an enrolment, providing it into the public domain, which is not currently done.

If I could, member for Flinders, I will just add that, although the unjustifiable hardship clause is new to this bill—and, I must admit, was new to me in terms of dealing with it in this place—it has been in the Disability Discrimination Act I think since 1992. So that model and that test I think has worked quite well. I am hoping that means that supplanting it from there and moving it or copying it across into this bill should not cause any problems, because there have been many decades of it being used.

Mr TELFER: There is that, but when you are transposing it into an education sphere, there is potential for complication. What legal protections or indemnifications, perhaps, do you envision schools will have against legal costs if their refusal is challenged?

The Hon. B.I. BOYER: Member for Flinders, in terms of legal indemnification, there will not be any and I do not envisage that it will be needed because any legal matter around challenging a refusal to enrol under the amendments here would be treated in the same fashion they would be treated by that educational institution if they were being legally challenged on an enrolment of any type or basically any other matter.

But I am reminded also that schools, or I should say more likely parents of a child with disability who has been refused an enrolment on what they believe to be unjust grounds, are currently able to challenge that decision through the Disability Discrimination Act. I am sure that might beg the question: so why are we moving that into this act? That is because the royal commission recommended that it be brought into this act. I might add that it is that recommendation and the conversation that has followed from that, that has led to us making these decisions and commitments around transparency of data as well.

Mr TELFER: Specifically on 63B, which talks about the reporting aspects, how will the government ensure that schools are not unfairly penalised or publicly criticised for what they would say are legitimate refusals?

The Hon. B.I. BOYER: I think in terms of the data that we are publishing, it is de-identified data, and I support that for a couple of reasons. One I know that you will understand all too well as the member of your seat, because it would have been true of the school where I went to primary school, is that if you publish the name of the school—in terms of the primary school I went to—everyone in the community would know who that person was. You have a number of schools which, of course, you know would be in that case as well.

I think the de-identification of data meets the test and finds the balance between more transparency but not unfairly putting a burden on schools and communities and, even more importantly than that, the child or family itself in terms of them being identified. I am reminded, too, that the data is only published in relation to sectors. I think that provides a bit more protection as well.

Mr TELFER: Just on that aspect in particular, will those sector level reports include any context to avoid misinterpretation perhaps of refusal data, or will it just be the raw numbers?

The Hon. B.I. BOYER: It is raw numbers, but I am sure that if we are successful in passing this bill and then we get to the end point where data is published, and it is de-identified raw data and questions might be asked of the public or the media, I am sure more context can be given by the sector from which that came. The sector itself may know the school in question, it is just that it is not identified in the raw data. But I would be confident we could go back and provide, as you say, a bit more context to say, 'Listen, on the face of it this might sound like a terrible thing but there is a bit of local data and context you're not aware of.' I understand the intent of your question and it is an important one.

Clause passed.

Clause 8 passed.

Clause 9.

Mr TELFER: Will there be any additional funding or support provided to help schools to manage the increased reporting and documentation workload? This is something that I highlighted in my second reading contribution. We do not really know as to what level those additional resources are going to be required at this point, but will there be consideration from the government for extra funding support or resourcing to be able to help individual schools manage that?

The Hon. B.I. BOYER: I do not envisage that that will be necessary, although I will keep a very close watch on it should it come into effect. As you know, workload for our school staff is something that we are speaking about a lot and for very good reason, and I do not want to unnecessarily add to that. I am pretty confident that the way that schools currently keep data around an enrolment that has been refused should enable them to pull that from their records management system, whether it is EMS or whatever the sectors might use, and then pass it on to, in this case, the Department for Education for publishing. I will watch that closely and seek feedback from the sectors about whether or not they are seeing an increased workload and whether it is something we need to address, but I am hopeful that will not be the case.

Mr TELFER: So you do not envision there being an additional obligation? You think the existing systems will have enough capacity within the detail of what is already recorded to be able to provide that as justification or communication of refusal or otherwise?

The Hon. B.I. BOYER: What I am saying is I think that the current mechanisms, in terms of how schools record data about an enrolment that has been refused, should quite easily enable that data to be passed on and made public. Almost no workload increase would be my expectation. That is the sort of reassurance I have had from the sectors too. Having said that, we have been down this path before with other things and have run aground, so I think it is important that we watch it very closely. If that is not true, we would need to address it. We have done a lot of work to get to this point and I am confident it can be done without too much increased obligation, as you say.

Clause passed.

Clause 10.

Mr TELFER: On clause 10, one of the aspects that provided us with some encouragement—and trying to understand on our side the engagement with the different sectors: public, Catholic and Independent—was making sure that there is consistency and also the understanding within the sectors of what the ramifications will be for them, especially around resourcing. So that commitment from the minister around keeping a watching brief on this aspect to ensure that there is not that additional reporting cost, whether that is a financial cost or a resourcing cost, will be really important, individually in each sector as well as overall. That is more of a statement than a question, but I think that that is something that was really pertinent in the debate of this bill in particular.

The Hon. B.I. BOYER: I agree. As I have said, there is almost not a day that goes past when I do not think of ways that we can reduce workload for our staff. I am not one to add to that lightly. I am confident that the changes we are making here will not do that, but they will position South Australia in a positive light, internally and nationally, in terms of us showing that we are willing to be transparent about the treatment of students with disability, even if it means some criticism is to flow to us, because we are committed to doing better.

I am proud that we have got to this point before any other state or territory, where I can stand with the Independent and Catholic schooling systems and say, 'We are all committed to this together.' No other state has been able to do that. But we will keep a watching brief. If we are successful in passing this, I am not going to say, 'Right, that's done and we can put that off to the never-never'. We will have to keep looking at it and ensure it is working and that it is not adversely affecting schools.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. B.I. BOYER (Wright—Minister for Education, Training and Skills) (16:18): I move:

That this bill be now read a third time.

Bill read a third time and passed.

The Hon. B.I. BOYER: Mr Deputy Speaker, I draw your attention to the state of the house.

A quorum having been formed: