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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2025-09-03 Daily Xml
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Education and Children's Services (Inclusive Education) Amendment Bill

Introduction and First Reading

The Hon. B.I. BOYER (Wright—Minister for Education, Training and Skills) (16:00): Obtained leave and introduced a bill for an act to amend the Education and Children's Services Act 2019. Read a first time.

Second Reading

The Hon. B.I. BOYER (Wright—Minister for Education, Training and Skills) (16:00): I move:

That this bill be now read a second time.

I am pleased to introduce the Education and Children's Services (Inclusive Education) Amendment Bill 2025. This bill implements part of the government's response to recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. In 2023, the disability royal commission made 222 recommendations for preventing and responding to violence, abuse, neglect against and exploitation of people with disability and for building a more inclusive society in which the rights of people with disability are respected, protected and fulfilled.

Fifteen of the royal commission's recommendations were directed towards promoting safe, quality and inclusive education for students with disability in all Australian schools. These recommendations followed the royal commission's sobering findings that students with disability faced multiple barriers to inclusive education, underpinned by negative attitudes and low expectations.

Some of the key barriers it identified included gatekeeping practices, which deny students with disability access to the school of their choice or informally discourage their attendance; the inappropriate use of exclusionary discipline, particularly from an early age; and the failure to provide students with disability with appropriate adjustments, supports and individualised planning. To overcome these barriers, the royal commission recommended a range of legislative and policy changes, improved procedures and support services, and changes to culture, capability and practice.

Last December, the South Australian government, together with Catholic Education South Australia and the Association of Independent Schools of South Australia, jointly announced a cross-sector response to implementing key recommendations of the royal commission related to preventing discrimination and exclusion and ensuring a more inclusive education for students with disability in South Australia.

Implementation of two of the recommendations (7.1 and 7.2) requires amendments to the Education and Children's Services Act 2019. These recommendations specifically addressed providing equal access to mainstream education and enrolment and preventing the inappropriate use of exclusionary discipline against students with disability. The bill I am introducing today will amend the act to support the implementation of those two recommendations in all South Australian schools.

The bill will insert a new object into the act to make clear that education and children services provided under the act are to be inclusive by enabling the participation of children and students with disability and supporting them to develop to their fullest potential. As disability is not currently defined in the act, the bill will also insert a definition of disability aligned with that in the commonwealth Disability Discrimination Act 1992.

The bill will remove the existing power of the chief executive of the Department for Education to direct that a child be enrolled in a specified government school because of the child's disabilities or learning difficulties. The bill will prohibit a government or non-government school from refusing a child's enrolment on the basis that the child has a disability, unless the enrolment of the child would impose an unjustifiable hardship on the school.

In determining whether a hardship imposed on the school would be an unjustifiable hardship, all relevant circumstances of the case will need to be taken into account, including the matters referred to in section 11 of the commonwealth Disability Discrimination Act 1992 and any relevant provisions of the Disability Standards for Education made under that act.

Government and non-government school principals will be required to report to the minister annually on the number of children with disability who had their enrolment refused on the basis that it would impose an unjustifiable hardship on the school. They will also need to report on the number of students with disability whose enrolment was cancelled and any measures taken by the school to reduce the number of refusals or cancellations of enrolments of children or students with disability.

The bill includes provision for the regulations to prescribe other information that must be included in the reports of the minister. I note in this regard that we intend to prescribe that reporting should also include the number of children with disability who had their enrolment refused on the basis that the school was at enrolment capacity, recognising that this is another reason that a school may need to refuse an enrolment application. As there are multiple factors that determine how enrolment capacity is defined and managed by different schools, it was determined to include this detail in regulations rather than in the primary legislation.

The government is committed to working with the non-government schooling sector on those regulations, and I want to acknowledge in this speech my thanks to Dr Neil McGoran and Anne Dunstan from Catholic Education South Australia and the Association of Independent Schools of South Australia for the work and support they have given us in the drafting of this bill.

The bill further requires that the minister publish a report setting out the number of times children with a disability were refused enrolment at government schools and the number of times children with a disability were refused enrolment at non-government schools on the grounds that it would impose an unjustifiable hardship on the school as well as the number of times students with a disability had their enrolment cancelled in each sector.

The minister's report will also need to include information regarding any trends identified in relation to the refusal or cancellation of the enrolment of children or students with a disability and any measures taken by the sectors to reduce the number of refusals or cancellations of enrolments of children or students with disability by government or non-government schools.

Government and non-government school principals will also be required to report to the minister annually de-identified information on the use of exclusionary discipline against students with disability at the school. This will include, for example, the number of times a student with a disability was suspended, excluded or expelled, the grounds for the disciplinary action and the number of school days impacted.

The minister will be required to publish sector-level reports of the information provided in relation to government and non-government schools. The use of exclusionary discipline in government schools is regulated by the act and associated regulations; however, Catholic and independent schools are not subject to those provisions and are able to determine their own approaches.

To support the implementation of recommendation 7.2, the bill will insert a new requirement that all non-government schools have a published policy regarding the use of exclusionary discipline in relation to students of the school. The policies will be required to set out the general approach of the school to managing student behaviour and the purpose for which exclusionary discipline may be used, the types of exclusionary discipline that may be used, when they may be used and by whom, the maximum length of time for which a student may be suspended, and the process for a student to return to school following a period of suspension.

In relation to these matters, the policies must be, as far as reasonably practicable, commensurate with any policy relating to exclusionary discipline that applies to government schools. The bill sets out that matters to which a person must have regard in determining whether to suspend or expel a student from a non-government school will be able to be prescribed in regulations. The Education and Children's Services Regulations 2020 already include a range of matters that must be considered when determining whether to suspend, exclude or expel a student from a government school.

Draft amendment regulations have been developed in consultation with the non-government sector, which will extend the application of this regulation into non-government schools and add a number of additional matters that will need to be considered by all schools, including the age of the student, whether the student has a disability, whether there is an individual learning plan in place for the student and whether it is being implemented, and whether there are any reasonable alternatives to suspending, excluding or expelling the student available in those circumstances.

In developing the amendments proposed by this bill, the government has worked closely with Catholic Education South Australia and the Association of Independent Schools of South Australia, disability advocacy groups, principals' associations, the Australian Education Union and other peak bodies, and I sincerely thank all of those bodies for their contributions to this very important work. The bill and draft supporting regulations were subject to public consultation through the YourSAy website from 20 May to 13 June 2025. The measures in the bill were well supported, with stakeholders particularly welcoming the increase in transparency and accountability that the new reporting provisions will bring.

All children deserve access to a safe, quality and inclusive education system, but the royal commission has shone a light on the barriers that still exist for many children with disability. This bill will support the implementation of two of the royal commission's recommendations for overcoming these barriers and enabling children and students with disability to participate and realise their full potential. I commend the bill to the house and I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Education and Children's Services Act 2019

3—Amendment of section 3—Interpretation

This clause inserts a definition of disability which is based on the definition used in the Disability Discrimination Act 1992 of the Commonwealth.

4—Amendment of section 4—Application of Act to non-Government schools

This clause makes a consequential amendment to reflect that some of the proposed amendments to the Act by this measure will apply only to non-Government schools (see proposed new Part 7 Division 3A).

5—Amendment of section 7—Objects and principles

This amendment inserts as a new object of the Act to ensure that the provision of education and children's services in the State is inclusive by enabling the participation of children and students with a disability and supporting them to reach their fullest potential.

6—Amendment of section 62—Chief Executive may direct that child be enrolled in particular school

The amendment to section 62(1) to delete paragraph (a) removes the power of the Chief Executive of the Department to direct that a specified child be enrolled in a specified school if satisfied that, on the basis that the child has disabilities or learning difficulties, it is necessary or appropriate to do so.

7—Insertion of Part 7 Division 1 Subdivision 1A

This clause inserts a new Subdivision in Part 7 Division 1 of the Act as follows:

Subdivision 1A—Enrolment of children or students with a disability

63A—Enrolment of children with disability

Proposed section 63A provides that a child must not be refused enrolment at a school (whether a Government or non-Government school) on the basis that the child has a disability unless it would impose an unjustifiable hardship on the school. In determining whether a hardship would be an unjustifiable hardship, all relevant circumstances must be taken into account including those matters set out in section 11 of the Disability Discrimination Act 1992 of the Commonwealth and any relevant provisions of the Disability Standards for Education 2005 made under that Act.

63B—Reporting in relation to refusal or cancellation of enrolment of children or students with disability

Proposed section 63B sets out the reporting requirements for Government and non-Government schools in relation to the refusal to enrol, or the cancellation of the enrolment of, children or students with a disability. This includes the number of children with a disability that were refused enrolment at a school on the ground that it would impose an unjustifiable hardship, the numbers of students with a disability whose enrolments were cancelled, the measures taken by the school to reduce the number of refusals or cancellations of enrolments and any other prescribed information. This information must be provided on an annual basis by 31 May in relation to the previous calendar year. The Minister must then publish a report on the information collected from the schools by 31 August in each year. Information provided for the purposes of this section must not directly or indirectly identify any individual and the information provided by the schools is not liable to disclosure under the Freedom of Information Act 1991.

8—Amendment of heading to Part 7 Division 3

This amendment makes a consequential amendment to the heading to Division 3 of Part 7 to take account of proposed new Part 7 Division 3A.

9—Insertion of section 80A

This clause inserts proposed section 80A as follows:

80A—Reporting in relation to suspension, exclusion and expulsion of students with disability

Proposed section 80A sets out the reporting requirements for Government schools in relation to the suspension, exclusion or expulsion of students with a disability. This includes the number of times students with a disability were suspended, excluded or expelled, the number of students with a disability that were suspended, excluded or expelled and, of those students, the number of instances each student was suspended, excluded or expelled, and for how long. Information is also required regarding the grounds on which those students were suspended, excluded or expelled and, of the total number of students with a disability enrolled at the school, the proportion of those that were suspended, excluded or expelled. This information must be provided on an annual basis by 31 May in relation to the previous calendar year. The Minister must then publish a report on the information collected from the schools by 31 August in each year. Information provided for the purposes of this section must not directly or indirectly identify any individual and the information provided by the schools is not liable to disclosure under the Freedom of Information Act 1991.

10—Insertion of Part 7 Division 3A

This clause insets a new Division 3A in Part 7 of the Act as follows:

Division 3A—Suspension and expulsion of students—non-Government schools

81A—Non-Government school to have policy in relation to suspension and expulsion of students

Proposed section 81A sets out the requirement for a non-Government school to have a policy regarding the use of exclusionary discipline (suspension and expulsion) in relation to students of the school. The policy must set out the general approach of the school to managing student behaviour and the purpose for which exclusionary discipline may be used, the types of exclusionary discipline that may be used and the grounds on which they can be imposed. It must also set out who is authorised to use exclusionary discipline and the maximum length of time for which a student may be suspended, in ordinary circumstances, and in exceptional circumstances. The policy must also set out the process for a student who has been suspended to return to the school and any other matters prescribed by the regulations. The policy must, as far as is reasonably practicable, be commensurate with any policy relating to exclusionary discipline that applies to Government schools. The policy is required to be published on the school's website.

81B—Reporting in relation to suspension and expulsion of students with disability

Proposed section 81B sets out the reporting requirements for non-Government schools in relation to the suspension or expulsion of students with a disability. This information is consistent with the information to be provided by non-Government schools under proposed section 80A. This includes the number of times students with a disability were suspended or expelled, the number of students with a disability that were suspended or expelled and, of those students, the number of instances each student was suspended or expelled, and for how long. Information is also required regarding the grounds on which those students were suspended or expelled and, of the total number of students with a disability enrolled at the school, the proportion of those that were suspended or expelled. This information must be provided on an annual basis by 31 May in relation to the previous calendar year. The Minister must then publish a report on the information collected from the schools by 31 August in each year. Information provided for the purposes of this section must not directly or indirectly identify any individual and the information provided by the schools is not liable to disclosure under the Freedom of Information Act 1991.

81C—Regulations in relation to decision to suspend or expel a student from non-Government school

Proposed section 81C provides that the regulations may specify matters to which a person must have regard when deciding whether to suspend a student from a non-Government school.

Debate adjourned on motion of Mr Teague.

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