The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) has released its extensive final report which describes aspirations for an inclusive society. The final report seeks to inspire significant reform to remove multiple barriers to access and enable meaningful inclusion. As with the final report of the 2017 Royal Commission into Institutional Responses to Child Sexual Abuse, we predict the Disability Royal Commission’s recommendations foreshadow significant legislative and regulatory reform. For this reason, we set out here the recommendations of the royal commission likely to have the biggest impact on how schools provide education for disabled students; being:
- Moving away from segregated education;
- Strengthening the right to enrolment;
- Rethinking exclusionary discipline;
- Student and parent participation; and
- Stronger oversight for schools.
Beyond responding to compliance obligations, Moores is proud to work with value-aligned clients who aim to provide the best educational opportunities for students, often above and beyond the law. The Disability Royal Commission provides a blueprint for how schools can improve their work with students with disability, ahead of legal reform. Our education clients tell us there is an increasing number and proportion of students with disability in our schools and increasing demand for adjustments. This is confirmed by the Disability Royal Commission. We want to work with our clients to support disabled students now, instead of waiting for legal reform.
1. Moving away from segregated education
As noted in our early article on the findings of the Disability Royal Commission, a key theme arising from the Disability Royal Commission was a shift away from segregated education. The commissioners were split on what form this should take. Three commissioners, including the two commissioners with lived experience of disability, recommended that the Australian Government and state and territory governments should recognise that inclusive education as required by article 24 of the Convention on the Rights of Persons with Disabilities is not compatible with sustaining special/segregated education as a long-term feature of education systems in Australia. In practical terms, they recommended the phasing out of all specialist schools by 2051, with no new enrolments of students with disability in specialist or segregated schools by 2032.1 As an alternative approach, the other three commissioners recommended a more conservative approach of co-locating non-mainstream schools alongside mainstream schools to facilitate partnerships and greater interchange between disabled and non-disabled students, and facilitate the transition of disabled students into mainstream school environments.2 Irrespective of any reform adopted in legislation or regulations, these recommendations indicate that mainstream schools must be cognisant of the need to facilitate inclusive education, including their existing obligations regarding reasonable adjustments, and may suggest a shift away from enabling schools the option of proposing enrolment exclusively at a specialist school on the basis that mainstream schools do not have the means to support disabled students.
2. Strengthening the right to enrolment
The Disability Royal Commission recommends that state and territory governments amend education Acts to provide that the right to enrolment is subject only to ‘unjustifiable hardship’ in the sense used in the Disability Discrimination Act 1992 (Cth).3 This would require amendments to the Equal Opportunity Act 2010 (Vic) which currently permits a school to discriminate against a person on the basis of their disability in the enrolment process if the adjustment is not reasonable or the student could not participate in or derive any substantial benefit from the educational program even if adjustments were made.4
The Disability Royal Commission’s proposed amendment would reduce the need for schools to apply both state and federal laws to determining enrolment obligations and rights – thereby simplifying the law – but also perhaps reduce the ability for schools to turn away prospective students based on their inability to “derive any substantial benefit from the educational program”.
3. Rethinking exclusionary discipline
The Disability Royal Commission wants regulators to adopt the principle that schools 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.5 Schools don’t need to wait for regulators to enact change. Instead, you may choose to reconsider disciplinary processes for students with disability and educate staff on how to avoid the use of exclusionary discipline. For example:
- Can a behaviour management plan or other reasonable adjustments be implemented to avoid the need for exclusionary discipline?
- Can staff be instructed on how to identify earlier signs of possible escalation, and implement redirection, so exclusionary discipline isn’t needed?
- Does your school have a system for monitoring the use of exclusionary discipline? Could a wellbeing staff member take on this responsibility, with the aim of rethinking how exclusionary discipline is used?
What is exclusionary discipline?
The Disability Royal Commission defines exclusionary discipline as actions by an educational authority or institution that results in the withdrawal of education or training from students with disability, including suspensions and expulsion.
4. Student and parent participation
The national and state-based Child Safe Standards already recognise student empowerment and parental and community participation as critical to a child safe organisation. The Royal Commission draws on this to recommend schools develop or update policies to include requirements for student and parental communication to be clear and accessible, be “co-designed with people with disability and their families” and indicate the type of decisions where the school will seek formal parental agreement, such as approaches to behaviour management.6
There is also a focus in the Disability Royal Commission’s recommendations for intersectional engagement, particularly with First Nations students and parents.
5. Stronger oversight for schools
Another recommendation is that school registration requirements should include oversight by regulators of:
- procedures to collect, analyse and report on complaints and the use of restrictive practices and exclusionary discipline; and
- reporting on the use of funding for students with disability.7
In Victoria, this would assumedly form part of the Victorian Registration and Qualifications Authority’s regular reviews of independent and Catholic schools. Similarly, the NSW Education Standards Authority, Non-state Schools Accreditation Board or other relevant regulators would take on this responsibility.
How we can help
We often help clients navigate reasonable adjustments for students, but often this is at the end of a long process of behaviour management plans and various adjustments that haven’t supported the student as intended. We consider the Disability Royal Commission provides schools with a timely reminder (as the quiet, summer period may allow respite for policy review), that there is much they can do proactively to support both disabled students and their staff in providing an inclusive and accessible school environment.
Both our Education and Safeguarding teams can help by working with you through consultation, policy review, implementation of new practices through tools and training to implement systems that work in your specific school community, reflect the values and beliefs of the Disability Royal Commission and ultimately seek to improve the experience of education of disabled children. If you want to get started, we recently published a few tips for schools to ensure child safety for disabled students and comply with their legal obligations.
For a broader perspective on the Disability Royal Commission from our Safeguarding team, we have also published:
Please contact us for more detailed and tailored help.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
1Disability Royal Commission, Recommendation 7.14.
2Disability Royal Commission, Recommendation 7.15.
3Disability Royal Commission, Recommendation 7.1.
4Equal Opportunity Act 2010 (Vic) s 41.
5Disability Royal Commission, Recommendation 7.2.
6Disability Royal Commission, Recommendation 7.6.
7Disability Royal Commission, Recommendation 7.11.