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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2025-10-30 Daily Xml
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Education and Children's Services (Inclusive Education) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 October 2025.)

The Hon. H.M. GIROLAMO (Deputy Leader of the Opposition) (12:24): I rise to speak on behalf of the opposition to address the Education and Children's Services (Inclusive Education) Amendment Bill 2025. At its heart, this bill seeks to make our education system more transparent, more accountable and, ultimately, more inclusive for students with disability. It forms part of South Australia's response to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, particularly recommendations 7.1 and 7.2, to provide equal access to mainstream education and to prevent the inappropriate use of exclusionary discipline. We welcome those aims and the intent of the bill before us today.

The opposition supports the principle of inclusion and transparency across all education sectors—government, Catholic and independent. We agree that every child deserves the chance to participate, learn and thrive in a safe and supportive school environment. The bill introduces several changes, including embedding inclusive education as an object of the Education and Children's Services Act 2019, making clear that education in our state should enable the participation of students with disability and support them to reach their fullest potential.

It prohibits schools from refusing enrolments on the basis of disability unless accepting that enrolment would impose an unjustifiable hardship on the school—a test drawn from the commonwealth Disability Discrimination Act 1992. It introduces an annual reporting obligation on enrolment refusals, cancellations and disciplinary action involving students with disability across both government and non-government schools. It requires non-government schools to publish their behaviour management and exclusion policies and to ensure those policies are, as far as practicable, in line with public school standards. It provides for sector-level publication of de-identified data to promote transparency without compromising the privacy of individual students.

These reforms have been shaped through collaboration between the Department for Education, Catholic Education South Australia and the Association of Independent Schools of South Australia and disability advocates. That cross-sector approach is a great example of different sectors working together. Not that I did not trust the minister, but I did in fact make sure I confirmed that this collaboration had occurred with the sector and have consulted directly with both Catholic Education and the Association for Independent Schools of South Australia. I thank both bodies for their hands-on approach and accessibility during this process.

The opposition supports the intent of this bill, but we also believe that getting the detail right will determine whether it delivers genuine inclusion or just new paperwork. In examining this bill, we have considered feedback from a range of different sources, including the Law Society of South Australia, Dr Spyrou from the Centre for Inclusive Education, and the broader education sector. The Law Society supports the bill's direction but has recommended enhancements such as including the reasons for each refusal, capturing data on children in care and justice settings, and publishing how the minister uses the data to improve system performances. These are constructive ideas for the minister to consider.

Dr Spyrou raised legitimate concerns about the government's consultation process: a 19-day window with limited publicity and no public access to submissions. That is not the level of openness that we should be aspiring to with reforms, in relation to transparency, that we have here today. Schools themselves have raised some real concerns relating to the operation of this bill, and I hope that the minister will take these on board. From consultation with stakeholders, we are calling on the government to:

provide sector-specific training and guidance on applying the Disability Standards For Education and the changes that come through, assuming this bill passes through this house;

develop a standardised decision-making framework for enrolments and exclusion decisions, including consistency and fairness;

deliver templates and support to our schools; and

commit to ongoing review once the commonwealth completes its own Disability Discrimination Act review later this year, to ensure state laws remain aligned. With that in mind, I indicate support for the Hon. Robert Simms' amendments which calls on the review prior to the third anniversary of the commencements of this act.

These are modest yet achievable steps that would turn this into a framework of lasting reform.

In summary, this bill represents an important step towards a more inclusive education system. It sends a clear message that discrimination and exclusion have no place in South Australian schools, but its main goal is to ensure that the law is not merely symbolic but is able to be implemented, resourced and consistent right across our schools. With that, I commend the bill to the chamber.

The Hon. T.A. FRANKS (12:29): I rise today to support this bill and to outline the rationale for some amendments I will seek to move to strengthen the bill, particularly in its commitment to inclusive education, transparency and accountability.

This bill presents an important opportunity to give genuine effect to South Australia's stated vision of inclusive education, a vision where every child, regardless of disability or learning profile, is given the opportunity to belong, to participate, and to thrive in their local school. Yet, as it currently stands, there remain areas within this bill that fall short of that ambition.

The amendments I will be moving have been developed following direct consultation with Dr Peta Spyrou, whose expertise in disability discrimination and inclusive education has been quite invaluable to my office, and I thank her for that. Dr Spyrou's PhD research and her evidence before the Social Development Committee's human rights inquiry in 2024 have shed light on the lived experience of families who have fought for their children who have complex learning profiles to access inclusive education in our state of South Australia.

Her work, alongside her review of public submissions to the draft Exposure Bill, including the submission from the Centre for Inclusive Education at QUT, identify some of the structural and cultural barriers that continue to limit genuine inclusion in our state of South Australia. The QUT Centre for Inclusive Education is one of Australia's leading research institutes in this field, and its researchers are internationally recognised for their work on evidence-based inclusion, school reform, and system-led accountability.

The centre played a key role in developing national frameworks for inclusive education, and conducted the 2020 Graham et al review into suspension, exclusion and expulsion processes in South Australian state schools, a comprehensive government-commissioned review led by Professor Linda Graham. That review exposed systemic overuse of disciplinary exclusions and the disproportionate impact of those practices on students with disability, on ATSI students, and students in care. It also demonstrated the importance of transparent data, of early intervention and professional support to keep students engaged in schooling.

These insights are directly relevant to the South Australian context, and have informed the amendments I propose today. I note that back then that review by the QUT centre was actually secured in an agreement with myself in collaboration with the former shadow minister and the former minister. Both former minister Susan Close and former minister and then later minister John Gardner were involved in that particular discussion, and we produced a report that should now be being incorporated into what we do as we go forward.

First, I turn to section 62 of the Education and Children's Services Act 2019. The provision there empowers the chief executive to direct a student's enrolment in certain circumstances. While originally intended to support appropriate placement decisions, it raises concerns about compatibility with inclusive education principles, and lacks procedural safeguards.

I support the government's proposal to repeal section 62(1)(a), which currently allows the chief executive to direct a child with disability to a particular school, including a special school if deemed necessary or appropriate. That repeal is a step in the right direction; however, Dr Spyrou's expert opinion demonstrates that the remaining subsections, namely 62(1)(b) and (c), may still enable gatekeeping practices that will limit access to mainstream education for children with disabilities.

These practices occur when families are advised or pressured or informally directed away from their local schools on the basis that inclusion is 'not practical' or that the child's needs would somehow be better met elsewhere. Sometimes these decisions are framed as being in the interests of safety or welfare of others, yet far too often they actually reflect a lack of will to provide reasonable adjustments.

Dr Spyrou's research, including interviews with conciliators from three equality agencies, has documented how hypothetical or extreme scenarios are somehow invoked to justify exclusion, rather than to explore how inclusion might be achieved. Such practices, of course, undermine the right to inclusive education under Article 24 of the Convention on the Rights of Persons with Disabilities, and are inconsistent with the Disability Discrimination Act 1992 (at the commonwealth level) and the Disability Standards for Education 2005.

The amendments I have filed would address this by ensuring that, before the chief executive directs a child's placement, the child must have been given a genuine opportunity to be enrolled in their local school, with the provision of reasonable adjustments and supports based on the best available research and evidence. This amendment will give legislative force to what inclusion should already mean in practice—that is, exclusion is the last result, not the first response.

Secondly, I draw this council's attention to another area of concern raised by Dr Spyrou after reviewing the submission made by the Centre for Inclusive Education and the findings of the Graham review: the bill's proposal to exempt certain new provisions, including what would be section 63B, 80A(6) and 81B(6), from the operation of the Freedom of Information Act 1991. These exemptions would prevent public access to important information about enrolment, disciplinary and behavioural practices in our new schools. If enacted, they will conceal data that is actually essential for understanding how inclusion, exclusion and discipline operate in principle across our state education system.

Transparency is fundamental to public trust, and Dr Spyrou's review of the submissions to the draft exposure bill emphasised that without access to such data it is impossible to know whether inclusive education is being delivered equitably or whether particular groups of students, especially those with disability, are being disproportionately excluded. Therefore, all provisions, including the FOI Act's application, I will contend should be removed. Removing these exemptions will promote transparency and accountability and support public oversight of exclusionary practices, as well as enhancing confidence in South Australia's commitment to inclusive education.

An inclusive education system cannot be built behind closed doors. It requires openness, collaboration and evidence. By embedding transparency and genuine inclusion in our legislation, we take a necessary step towards ensuring that every child in South Australia can access the education that they not only deserve in their local school but that they should be able to expect in their local school, with the supports they need and within a system that welcomes them rather than shuts them out.

I acknowledge the government's positive work in bringing this bill forward and its commitment in advancing inclusive education across our state. The amendments I propose will build on that foundation. They do not seek to oppose it; rather, they aim to ensure that the legislation delivers on its promise, and that inclusion is not just an aspiration but a lived reality for every South Australian child. I invite members of this council to consider these constructive amendments.

I note that while the government so far has not been terribly receptive in our conversations, and has raised concerns such as a lack of definition currently in the act for a local school as one of those barriers, I flag also that I will soon file a definition of 'local school' for the government to further consider, so that we may perhaps have an education that is truly inclusive, does afford students in the state system to be able to be enrolled in their local school—where they have that entitlement and should have that expectation, not only under our various human rights mechanisms but in what most South Australians would assume would be the standard practice in 2025. With that, I commend the bill and look forward to the committee debate.

The Hon. C. BONAROS (12:38): I rise to speak in support of the Education and Children's Services (Inclusive Education) Amendment Bill 2025. As we know, this bill is part of a much bigger review that is currently underway, but is in response to the final report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. One of the recommendations in that report was that states and territories amend their education acts, or equivalents, to create a legal entitlement for students with disability to enrol in local mainstream schools and to provide the right for enrolment to be subject only to unjustifiable hardship in the sense used in the Disability Discrimination Act.

The recommendation went as far as stating that the 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 any trends and barriers in that space, and also establish an independent review process to enable a parent or supporter of a child or young person with a disability to challenge such a refusal for enrolment at a school.

That is only one of the recommendations. As I said and as the government has advised me, this particular bill, I suppose, incorporates the least contentious and simpler aspects of a much bigger body of work, which I understand is still underway. I accept the government's position. In fact, I think it is good of the minister to actually identify this particular aspect and say, 'We don't need to wait for that particular body of work to be completed before we get off the ground with what's in this bill.'

Having said that, I acknowledge the remarks just made by my colleague the Hon. Tammy Franks and, indeed, the Hon. Heidi Girolamo before her. Anyone who has taken the time to speak to Dr Spyrou, who, as the Hon. Tammy Franks has highlighted, is indeed an expert in this space and does know what we ought to be doing in this space, knows that when it comes to those gatekeeping practices which we are trying to address, there is a problem in the bill.

Dr Spyrou has emphasised that to me, and I am grateful to the Hon. Tammy Franks for taking up that issue and drafting amendments to deal with, for want of better words, a loophole or a barrier in terms of those gateway keeping practices, which is exactly what we are intending to address through this bill. There is no point doing it if we are going to put barriers in the way of actually achieving the end that this bill is designed to achieve.

I have had some discussions with the government in relation to this. I do not think that what the Hon. Tammy Franks is outlining is actually detrimental to this proposal. I think what she is proposing is an improvement and an oversight in terms of what we ought to be doing to ensure that we are reaching that end goal. I am very hopeful that the minister will remain open to considering the amendments that the Hon. Tammy Franks has moved.

I appreciate that they fall into two baskets, firstly in relation to the FOIs but more specifically in relation to amendment No.1, which I am sure the honourable member will speak to in further detail when we get to it, but I think we have an opportunity here to make this legislation better and to actually ensure that we are meeting our objectives in line with the recommendations that were made as a result of that royal commission that I referred to earlier.

I have indicated my willingness to the government. In fact, I have impressed upon them my hope that they will consider this amendment favourably so that we can actually achieve the ends that we all want. I do not think that it is a valid excuse to say, 'Let's pass this bill now and perhaps come back to this particular item when we look at the legislation more broadly and in terms of that bigger review that we are doing, which will cover some of the other substantive issues and perhaps some of the more contentious issues at play in this space.'

It is on that basis that I indicate that I am supportive of the amendment that the Hon. Tammy Franks is moving and that I hope the government is open to considering it on its merits and taking on board the advice that has been provided by Dr Spyrou to anyone who has been willing to take it on board. Certainly I know that efforts have been made to ensure that everybody knows what the position is, why the problem exists and how it can be addressed effectively by us in this place today.

The Hon. J.S. LEE (12:45): I rise today to speak in support of the Education and Children's Services (Inclusive Education) Amendment Bill 2025, which is an important step in South Australia's response to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

This bill aims to stop gatekeeping practices, make enrolment processes fairer and improve transparency in how schools manage discipline for students with disability. It introduces a set of changes to strengthen inclusive education in South Australia. This includes updating the definition of disability to match commonwealth law, removing the chief executive's power to direct enrolment based on disability, requiring schools to report when enrolments are refused or cancelled, and asking non-government schools to publish discipline policies that align with government school standards. The bill also adds a new object to the act to support inclusive education for students with disability.

Each of these reforms is a meaningful step forward. Aligning the definition of disability ensures consistency across jurisdictions and helps schools apply the laws with clarity. Removing the chief executive's power to direct enrolment based on disability affirms the principle that students with disability should not be segregated, discriminated against or placed in schools without proper consultation or support. Requiring non-government schools to publish discipline policies brings greater transparency and consistency across sectors, helping families to understand their rights and expectations.

While the inclusion of a new object is a welcome step, I am concerned that it may unintentionally limit the idea of inclusion. Inclusive education should be a right for all students, not just those with disability but also Aboriginal students, children in care, children of diverse cultural backgrounds and those who are facing social and economic disadvantage. A broader and more inclusive object would better reflect our shared commitment to fairness across the whole education system.

It is encouraging to see stronger accountability across school sectors. However, the current reporting rules may miss important data that could help with planning and improvement. For example, while schools must report disciplinary actions involving students with disability, they are not required to report this for all students. This makes it harder to see wider patterns of exclusion or unfair treatment, especially where different factors, such as disability, culture or background, tend to overlap.

At the same time, the reporting requirements introduced by this bill are a positive step forward. They would help build a clearer picture of how students with disability are being supported and where improvements are required. This data will guide policy, resource planning and professional development and will help strengthen inclusive practices across the education system.

It is important that schools are supported to meet these obligations through streamlined systems and training, so that the focus remains on student wellbeing and learning. The need for better data is clear from the royal commission's findings. It showed that students with disability face many barriers to education, including being discouraged from enrolment, being disciplined unfairly and also not receiving the support they need.

The royal commission recommended that exclusionary discipline should only be used as a last resort and that decisions must consider the students' needs, age and disability, especially for younger children. One of the strengths of this bill is the consultation and collaboration with Catholic Education SA and the Association of Independent Schools of SA on these reforms. I also want to join with the other honourable members who spoke earlier to thank Dr Peta Spyrou for her expertise, her compassion, her extensive work and strong advocacy, and also for taking the time to consult and write to me.

I want to acknowledge the amendments put forward by the Hon. Tammy Franks to strengthen the bill's intent and address several gaps which were highlighted by Dr Peta Spyrou and, in particular, the amendment to section 62 to ensure that students with disability are given a genuine opportunity to enrol in their local school with reasonable adjustments and supports informed by best practice. This is a critical safeguard against informal segregation under the guise of safety. These amendments improve the bill's clarity and reinforce its commitment to inclusive education across all sectors.

I also want to acknowledge the amendment to be put forward by the Hon. Robert Simms which calls for a review of the operation of these providers to ensure that they are delivering the outcomes intended by the bill. This addition reinforces the importance of not only legislating for inclusive education but also monitoring its real world impact over time.

No bill is perfect, but the intention for improvement is warranted and this one makes real progress. It responds to the royal commission's findings and lays the groundwork for a more inclusive and fair education system. With continued collaboration and support for schools, I see this continuing to be built upon to keep improving outcomes for all students, especially those who have been left behind. I am committed to making sure that South Australia provides inclusive and equitable education for every child. I will be considering all the amendments favourably and, with those remarks, I commend the bill.

The Hon. R.A. SIMMS (12:51): I rise to very briefly indicate my support for the Education and Children's Services (Inclusive Education) Amendment Bill. Other members have talked about the genesis of this bill and therefore I will not traverse that similar territory. What I will say is that members will know that I have been an advocate for more transparency within the school system. I see this as being a move in the right direction.

I would, of course, like to go further. Members might recall that I had a bill before parliament, which was opposed by Labor and the Liberals, which would have subjected private schools to the same reporting requirements as public schools. I do think that is an important transparency measure. In fact, I often have people with children within the private school system speak to me about the fact that issues within that school system are being covered up or not appropriately addressed.

I think improving transparency across the board within the private school system would be a really worthwhile endeavour, and that is a matter that I intend to pursue again in the new parliament. However, that said, I think this bill, with the increased transparency that it brings towards children with disability and special needs, is really welcome.

I might use this opportunity to speak very briefly to my amendment that I will move in the committee stage. The amendment is very straightforward. It requires there to be a review that is completed before the third anniversary of the commencement of the bill. I think one of the benefits of that amendment is that it would provide an opportunity for us to again look into how this bill is working in practice and see whether there are potential gaps that need to be plugged.

I note the amendments that have been flagged by the Hon. Tammy Franks. I have an open mind to those amendments and I will listen closely to the debate in the committee stage.

The Hon. J.E. HANSON (12:53): The 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 particular, the bill responds to recommendation 7.1, to provide equal access to mainstream education and enrolment, and recommendation 7.2, to prevent the inappropriate use of exclusionary discipline against students with a disability.

The disability royal commission found that students with disabilities face multiple barriers to inclusive education, inclusive gatekeeping practices which informally discourage their enrolment and the inappropriate use of exclusionary responses. The bill was the subject of extensive public consultation, including through the YourSAy website from 20 May 2025 to 13 June 2025. In December 2024, the SA government, Catholic Education South Australia and the Association of Independent Schools of South Australia jointly announced a cross-section response to implementing key recommendations of the royal commission, and this bill has been strongly informed by that work. The main changes are:

inserting 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;

providing that schools must not refuse enrolment on the basis of disability unless this would impose an unjustifiable hardship on the school. This obligation is already set out in the commonwealth Disability Discrimination Act 1992, and including it in state legislation affirms the spirit and the intent;

requiring all government and non-government schools to report annually on:

the number of children with disability who had their enrolment refused on the basis of unjustifiable hardship;

the number of children with a disability whose enrolments were cancelled;

measures taken to reduce refusals or cancellations; and

the number of students with disability who were suspended or excluded, for what reason and for how long; and

the minister must publish a report on the information provided, which aggregates the data for the government schools and for non-government schools. This means individual schools will not be identified. In addition, the bill requires that the information provided by schools must not identify any individual.

There is one provision that applies only to the non-government sector, because it already applies to government schools. Non-government schools will be required to have a published policy regarding the use of exclusionary discipline at that school. This does not apply to government schools because the act already sets out a very clear process for suspension, exclusions and expulsions in the department's procedure, which provides further details and is already published online.

During the consultation, stakeholders welcomed the increase in transparency due to these new reporting requirements. While the changes are modest, they will help all education sectors track progress towards more inclusive education for students with a disability in South Australian schools.

The Hon. E.S. BOURKE (Minister for Infrastructure and Transport, Minister for Autism) (12:56): I thank members for their feedback on the bill, particularly the Hon. Heidi Girolamo, the Hon. Tammy Franks, the Hon. Connie Bonaros, the Hon. Jing Lee, the Hon. Rob Simms and the Hon. Justin Hanson. As we have heard, this is a significant bill coming into this chamber, enabling our state to be one of the first to act and make change in this crucial area, to ensure that people and students with a disability can participate in their school environment. I look forward to the committee stage.

Bill read a second time.

Sitting suspended from 12:58 to 14:16.

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