​​​​​​​​​​​​​​​​​​​​​​​​Background

This chapter provides an overview of other relevant reports and their recommendations regarding support of students with disability. It then identifies key policies of the NSW Department of Education (the department) and the NSW Education Standards Authority that aim to support children and young people with a disability. The chapter concludes by reviewing the legal framework for school education in New South Wales.

Relevant reports regarding support of students with disability

A number of reports of various independent public inquiries and government bodies have considered the support for students with disability. This section provides an overview of these reports in relation to their recommendations and findings.

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

The Royal Commission was established in 2019 to inquire into actions governments, institutions and the community should take to ensure a more inclusive society that supports the independence of people with disability and their right to live free from violence, abuse, neglect and exploitation.^{[footnote 1.]}

The inquiry investigated education, employment and housing for people with disability, making 222 recommendations in the final report,^{[footnote 2.]} of which 15 relate to inclusive education and are discussed further below.

The Royal Commission highlighted the increasing number of students with disability in Australian schools, emphasising the growing need for a more inclusive school system. It recommended a rights-based approach, and called for a safe, quality, and inclusive school system that provides effective supports to meet the diverse needs of students. The report also found that the current state of Australian schools falls short in delivering consistent inclusive education, with students with disabilities facing multiple barriers, exclusion, and misuse of disciplinary measures.^{[footnote 3.]}

Recommendations of the Royal Commission

The report made the following recommendations (7.1 – 7.13) addressing inclusive education: 

All Commissioners agreed that mainstream systems must be significantly reformed to remove barriers to access and enable meaningful inclusion, safety and belonging for people with disability in these settings. The Commissioners had two differing views on phasing out special education settings:

• Three Commissioners recommended phasing out and ending special/segregated education by the end of 2051 (Recommendation 7.14)^{[footnote 6.]}
• Two Commissioners recommended retaining special education settings while facilitating smoother transitions and interactions between non-mainstream and mainstream schools (Recommendation 7.15).^{[footnote 7.]}

The joint Australian, State and Territory response to the Disability Royal Commission was released on 31 July 2024, with 13 of 15 recommendations relating to education accepted in principle:

• to work in partnership with people with disability to achieve the DRC 'vision for more accessible and inclusive education for school students with disability' (Recommendations 7.2, 7.3, 7.6 and 7.13)
• to build 'workforce capability and expertise and strengthen complaints management practices'. (Recommendations 7.8 and 7.10)
• to improve 'data and evidence on the experience and outcomes … and improving funding for students with disability.' (Recommendations 7.9 and 7.12).^{[footnote 8.]}

The joint response to Recommendations 7.14 and 7.15 was to 'note' the recommendations, with state and territory governments 'responsible for making decisions about registration of schools in their jurisdiction'.^{[footnote 9.]} In their additional comment, the NSW Government indicated:

The NSW Government recognises the varied perspectives on specialist settings within the educational landscape, as evidenced by differing views among stakeholders and commissioners. The Government is committed to supporting educational environments that cater effectively to all students, fostering inclusive practices while recognising the importance of choice and diversity in educational pr​ovision. We acknowledge that specialist settings play a crucial role in meeting the diverse needs of students and offer choice to families in selecting the most suitable educational environment.^{[footnote 10.]}

Independent Review into the National Disability Insurance Scheme

The National Disability Insurance Scheme (NDIS) is a national scheme funded by the Australian Government to provide funding and support for eligible people with disability. The primary focus is on providing functional supports for daily living; education and training support does not fall under its remit.^{[footnote 11.]} The National Disability Insurance Scheme (Support for Participants) Rules 2013 (Cth) explicitly exclude supports that relate to participation in​​ education and learning such as teaching and learning assistance, educational aids, and building modifications.^{[footnote 12.]}

An independent review into the NDIS (NDIS Review), launched in 2022, sought to examine its design, operations and sustainability. The review identified significant issues concerning the interaction between NDIS and school education, including that the NDIS can exacerbate exclusion in schools:

Its individualised approach often fails to integrate with the classroom experience, and can undermine inclusion for children with disability. This approach also creates perverse incentives whereby some students only receive supports in class if they are a participant, even though schools are provided funding (through disability loadings) for meeting the disability needs of their students.^{[footnote 13.]}

The final report made 26 recommendations and outlined 139 subsequent action items. A subset pertained to education, falling under the broad category of 'unified support'. This included:

Recommendation 1: Invest in foundational supports for fairness, balance and sustainability in the disability ecosystem.

• National Cabinet to invest in a capacity building program
• National Cabinet to jointly invest in early supports for children with emerging development concerns and disability
• National Cabinet to invest in programs and initiatives to support adolescents and young adults with disability aged 9 to 21 to prepare for and manage key life transition points.^{[footnote 14.]}

Recommendation 2: Increase the scale and pace of change in mainstream and community inclusion and accessibility and improve the connection between mainstream services and the NDIS.

• All Australian governments should take steps to protect the right to inclusive education for children with disability and developmental concerns in early childhood education and care and schools.
• The National Disability Insurance Agency and the Department of Education, with state and territory education and disability agencies, should develop a plan to better connect the NDIS and school education systems and improve educational outcomes for children with disability.^{[footnote 15.]}

The 2017 inquiry into students with a disability or special needs in New South Wales schools

In 2017, the Legislative Council's Portfolio Committee No. 3 - Education tabled its report into the provision of education to students with a disability or special needs in government and non-government schools in New South Wales.

The report highlighted a disparity between the inclusive education provisions promoted in legislation and policy and the actual experiences of many students with disability in New South Wales schools. There was an unacceptable level of alleged ill-treatment and reportable incidents involving children with disability. Furthermore, it found that New South Wales schools will not receive the full allocation of funding as originally agreed under the National Education Reform Agreement due to the adoption of Gonski 2.0 policy. This policy shift was suggested to have impacts on students with a disability.^{[footnote 16.]}

The committee made 39 recommendations, promoting inclusion of all children in mainstream settings, with exceptions only for compelling individual reasons. The recommendations included that the NSW Government:

• enhance transparency on how the needs of students with disability are being met
• strengthen complaints processes and data collection
• implement a funding model to better reflect the needs of students with disability
• provide greater support through training in legal requirements and ease of access
• adopt evidence-based programs
• provide formal best practice guidelines to assist Schools for Specific Purposes work with mainstream schools to deliver a full curriculum to their students
• mandate the individualised education plans for all students with disability.^{[footnote 17.]}

The report also supported a cultural, legislative and policy shift from segregating students with disability to including them in mainstream schooling, where practical. The committee believed this reflected a broader societal move towards disability inclusion and recognised that decisions about enrolment should primarily be about parental choice.^{[footnote 18.]}

The NSW Government response to 2017 report

The government response, provided in March 2018, to the 2017 Legislative Council report supported all 39 recommendations, the vast majority in full.^{[footnote 19.]}

The government acknowledged areas of concern raised by the committee and committed to addressing many of the committee's recommendations. Actions that were already underway at the time included:

• investigating sustainable, evidence-based options for improving education provision
• reviewing and improving professional learning for principals and teachers
• improving access to specialist allied health and therapy services
• improving the process for students to access specialist education services in NSW public schools.^{[footnote 20.]}

In regard to the specific recommendations of the committee, the NSW Government outlined a set of actions, including:

• reporting annually under the Disability Inclusion Act 2014
• appropriately and adequately funding students with disability
• enhancing data collection and management
• increasing support classes in mainstream schools.^{[footnote 21.]}

The recommendation to include children in mainstream settings was supported in principle. While the department stated it was committed to further building the capacity of its public schools to support and meet the needs of their local students, it acknowledged that the Education Act 1990 only provides for all students to seek enrolment at their local public school. It does not give the NSW Government power to require non-government schools to enrol particular students.^{[footnote 22.]}

The department recently advised that 38 of the 39 recommendations have now been implemented. The department further advised that it is continuing to work on implementing Recommendation 4: 'That the NSW Government works with the Commonwealth Government to increase the overall funding available to ensure that adequate funding is provided to government schools to meet the needs of students with disabilities and special needs'.^{[footnote 23.]}

Key government policies

The NSW Department of Education and the NSW Education Standards Authority (NESA) have implemented a number of policies and reforms over the last decade aimed at improving support for students with disability. This section outlines the various relevant policies enacted by the department and NESA.

NSW Department of Education

A number of strategies and policies support the commitment of the NSW Department of Education to build more inclusive public education.

Plan for NSW Public Education

In 2023, the Department of Education released a new plan for public education that focuses on 'driving equitable outcomes, opportunities and experiences through the provision of high- quality education'.^{[footnote 24.]} This plan was shaped by insights from the department's 2019 Disability Strategy discussed below. 

The plan outlines the department's strategic direction and priorities to deliver safe and inclusive education to all students in New South Wales by 'reducing gaps in student outcomes due to structural inequalities'. This includes Aboriginal students, students experiencing socioeconomic disadvantage, students in rural, regional and remote New South Wales, students from culturally and linguistically diverse backgrounds and community, and students with disability.^{[footnote 25.]}

Key areas of focus of the plan are:

• Advance equitable outcomes, opportunities and experiences.
• Strengthen trust and respect for the teaching profession and school support staff.
• Give children the best start in learning.
• Deliver outstanding leadership, teaching and learning.
• Strengthen student wellbeing and development.
• Provide meaningful post-school pathways.^{[footnote 26.]}

The Plan has no explicit reference to students with disability although its development included consultation with the Disability Strategy Reference Group and the Special Education Principals' and Leaders' Association of NSW.^{[footnote 27.]}

Disability Strategy

In 2019, the department released the Disability Strategy which outlined the vision for building a better education system for students with disability in New South Wales public schools by focusing on the concept of inclusion.^{[footnote 28.]}

Under the Disability Strategy, inclusive education in New South Wales is defined as:

… all students regardless of disability, ethnicity, socioeconomic status, nationality, language, gender, sexual orientation or faith, can access and fully participate in learning alongside their similar aged peers, supported by reasonable adjustments and teaching strategies tailored to meet their individual needs. Inclusion is embedded in all aspects of school life, and is supported by culture, policies and everyday practices.^{[footnote 29.]}

The strategy identified four areas crucial to reform:

• strengthen support by investing in teachers and support staff
• increase resources and flexibility for schools to meet students' needs
• improve the family experience by improving access to information and support, and improving the complaints process
• track learning outcomes, wellbeing and independence of students with disability.^{[footnote 30.]}

Recognising that many children and young people with disability from rural, regional and remote communities lack access to allied health services that can provide diagnostic assessments and/or support, the department is shifting towards recognising the functional needs of a student rather than relying on a disability diagnosis.^{[footnote 31.]}

The Disability Strategy also led to the development of the Inclusive Education Statement for students with disability, which further defined what inclusive education means for school communities including 'education environments that adapt design and physical structures, teaching methods and curriculum, as well as the culture, policy and practice of education environments so that they are accessible to all students without discrimination'.^{[footnote 32.]} This is discussed further below.

Inclusive Education Statement for students with disability

The department has developed a statement and policy to support inclusive practice which extends to all staff, including contractors, consultants, volunteers and committee members working with the department.

The Inclusive education for students with disability policy reflects the requirements of the Education Act 1990, the Disability Discrimination Act 1992 (Cth) and the Disability Standards for Education 2005 (Cth). It also includes information from the United Nations Convention on the Rights of Persons with Disabilities, in particular, Article 24 on Education, and the department's Inclusive Education Statement for students with disability.^{[footnote 33.]}

The Inclusive Education Statement for Students with disability outlines six key 'Principles of Inclusive Practice for Students with Disability':

• student agency and self-determination, which includes recognition of student voices and the need for students to be involved in all decisions that affect them​
• parent and carer inclusion, which outlines the need for teachers and schools to work in partnership with parents and carers
• social and cultural inclusion, which recognises the need to ensure that students are welcomed and supported to create relationships with other students
• curriculum inclusion, which outlines how students with disability are to be 'supported to access the same curriculum and syllabus outcomes as their peers'
• workforce capability inclusion, which describes how students with disability will have 'equitable access to quality teaching' and how teachers are supported to improve their practice to meet student needs.
• system inclusion where inclusion is 'embedded in all aspects of school life, and is supported by culture, policies and everyday practices in NSW public schools. Inclusive practice is evident in classrooms, schools, school leadership, and across all staff who support schools'.^{[footnote 34.]}

Student Behaviour Policy and Suspension and Expulsion

The Department of Education's suspension and expulsion policy, implemented in 2007, and updated in 2023, was operational from the start of Term 1, 2024.^{[footnote 35.]}

The policy outlines the use of suspension and expulsion practices concerning various degrees and seriousness of unacceptable student behaviour. It applies to all New South Wales public schools, with the exception of preschools.^{[footnote 36.]}

According to the policy, a formal caution of suspension is initially issued to parents or carers when an individual student's behaviour persists and raises concern.^{[footnote 37.]}

If a formal caution proves insufficient, principals can resort to suspension as a behaviour management intervention when behaviours of concern pose an unacceptable risk to others or to teaching and learning. Grounds for suspension include but are not limited to:

• continued/persistent disobedience and/or disruptive behaviour
• malicious damage to or theft of property
• verbal abuse
• bullying and cyberbullying
• misuse of technology
• discrimination, including that based on sex, race, religion, disability, sexual orientation or gender identity.^{[footnote 38.]}

In more severe cases, where behaviour interventions, including suspensions and risk management strategies are unsuccessful, principals may consider the expulsion of a student from school. Grounds for an expulsion include the following:

• serious behaviour or behaviours of concern where behaviour interventions and risk management strategies, including suspensions, have not been successful
• unsatisfactory participation in learning for students aged 17 years and over.^{[footnote 39.]}

Appeals against suspension and expulsion decisions can be made where a student or their carer believe departmental policy and procedures have not been followed correctly and /or an unfair decision has been made.^{[footnote 40.]}

Restrictive Practices Policy and Framework

The Department of Education released the Restrictive Practices Policy and Framework in in order to provide clear guidance on the use of restrictive practices in schools. The policy seeks to meet the national goal of reducing and eliminating the use of restrictive practices, and to ensure students are safe, respected and protected.^{[footnote 41.]}

A restrictive practice is defined as 'any action that has the effect of restricting the rights or freedom of movement of a person, with the primary purpose of protecting the person or others from harm'.^{[footnote 42.]}

However, the policy is not currently in force, as its implementation was paused in response to feedback from stakeholders that more time was needed to engage with and understand the policy. The policy's implementation will recommence in 2024 and will become fully operational from day one, Term One, 2025.^{[footnote 43.]}

In the interim, the Department of Education advised that New South Wales public schools and government preschools must continue to be guided by the following six principles in their use of restrictive practices:

• student centred
• least restrictive
• for the shortest time
• helping to reduce and eliminate restrictive practices
• monitored and
• reviewed regularly.^{[footnote 44.]}

NSW Education Standards Authority (NESA)

NESA is responsible for accreditation of Initial Teacher Education Courses, developing criteria for the design of ongoing professional learning of teachers, registration of government and non-government schools and the Higher School Certificate Disability Provisions for eligible students. These programs and policies are discussed in further detail below.

Disability provisions in the Higher School Certificate

The Higher School Certificate (HSC) disability provisions provide students with practical support to access, read and respond to the HSC exams. This ensures there are reasonable adjustments available to students with disability so they can access and participate in the HSC on the same basis as students without disability.^{[footnote 45.]}

The provisions address students' exam needs related to learning, medical, vision or hearing disabilities and are approved on the basis that the disability prevents a student from either reading exam questions or communicating responses. For example, students doing their HSC may need disability provision for:

• a permanent condition, such as cerebral palsy or vision impairment
• a temporary condition, such as broken arm, or
• ​an intermittent condition, such as back pain when sitting for long periods.^{[footnote 46.]}

These provisions include, but are not limited to, readers, extra time, rest breaks, braille papers, enlarged papers, and modified exam papers.^{[footnote 47.]}

Applying for disability provision begins with a student, parent or school identifying a need for it. Next, discussion of eligibility requirements and the application process occur with school staff, such as the principal or the disability provisions coordinator. The application, along with relevant documentation such as evidence of diagnosis, functional evidence, and teacher comments, is then submitted to NESA for review. Following this, the decision letter is sent to the principal and relayed to the student. Appeals can also be made with the submission of new or additional evidence.^{[footnote 48.]}

Teacher accreditation and support

According to NESA, teaching students with disability is a priority area for the professional learning of teachers in New South Wales. For example:

• all New South Wales teaching degrees include mandatory studies in disability education, so that graduates possess a foundational understanding of addressing the learning needs of students with disability.
• NESA further supports teachers, learning support staff and others by providing a range of materials, including teaching advice, sample teaching programs, case studies, and examples of reasonable adjustments to support them in assisting students with disability.
• NESA also provides criteria for providers designing and delivering professional learning for teachers in New South Wales, including making a panel of experts available to provide advice where required. Teaching students with a disability is a priority area for professional learning.^{[footnote 49.]}

​School registration requirements

All schools in New South Wales must be registered with NESA to operate, and optionally be accredited for the Record of School Achievement (RoSA) and HSC. Registration ensures that a school meets the minimum requirement of the Education Act 1990 (NSW).^{[footnote 50.]}

NESA provides advice on the requirements of all New South Wales schools in relation to the Australian Disability Standards for Education 2005 (Cth) to support teachers to provide reasonable adjustments for students with disability in school settings, and requires schools to have policies in place to ensure that students with disability are appropriately supported. NESA monitors compliance with this requirement through the registration process.^{[footnote 51.]}

For non government schools, successful registration and accreditation are contingent on meeting the legal requirements and the range of criteria detailed in The Registration and Accreditation of Individual Non-government Schools Manual and Registration Systems and Member Non-government Schools Manual.

Likewise, the NSW Registration Process for the Government Schooling System Manual outlines the process for NESA to monitor and provide advice on the compliance by the NSW government schooling system which has 'similar requirements to those required for the registration of non-government schools'.^{[footnote 52.]}

The manuals stipulate, under Curriculum, that a school's inclusive curriculum planning and teaching practice should promote and support access to educational programs that cater to diverse student needs. This includes culturally responsive teaching and learning for Aboriginal and Torres Strait Islander students, and appropriate adjustments, support and accessible learning opportunities for students with disability and for students with identified learning needs.^{[footnote 53.]}

In ensuring a safe and supportive environment for students, schools must, as evidence of compliance, demonstrate that they implement policies and procedures for:

• identifying students with disability and learning needs
• providing support for students with disability and learning needs.^{[footnote 54.]}

To meet the criteria for registration, all government and non-government schools in New South Wales are required to, implement policies and procedures regarding raising and responding to complaints or grievances identified by students and/or parents and carers.^{[footnote 55.]}

In addition to registration, non-government schools may apply to be recognised as a Special School or Special Assistance School. Approval is contingent on schools demonstrating they:

• enrol students using the disability criteria prescribed by the NSW Department of Education
• employ teachers with appropriate qualifications and experience to teach the students enrolled.^{[footnote 56.]}

Legal framework for school education in New South Wales

The rights of children and young people with a disability to equitably access and participate in education are protected through various state and national laws. In New South Wales, the Education Act 1990 sets out the legislative requirements for school education in the state. In addition, the Anti-Discrimination Act 1977 contains provisions prohibiting disability discrimination in education settings. A complaint under this Act can be made to the President of Anti-Discrimination NSW and can ultimately be heard by the NSW Civil and Administrative Tribunal (NCAT).

At the Commonwealth level, the main legislation regarding disability discrimination is the Disability Discrimination Act 1997 and the Disability Standards for Education 2005. The Australian Human Rights Commission Act 1986 sets up the administrative framework for the making of complaints to the Australian Human Rights Commission.

The Disability Discrimination Act 1997 (Cth) through the associated Disability Standards for Education 2005 puts in place the requirement for educational institutions to provide 'reasonable adjustments' for students with disability to allow them to participate in education and training on the same basis as students without a disability. This is discussed further below.

Education Act 1990

The Education Act 1990 (Education Act) sets out the compulsory schooling requirements for enrolment and attendance of students at school in New South Wales. The Act provides that school attendance is compulsory for children between the ages of 6 and 17.^{[footnote 57.]} It is the duty of a parent to cause a child of compulsory school age to be: enrolled at, and to attend, school; or be registered for home schooling and receive instruction in accordance with the conditions of registration.^{[footnote 58.]}

School-aged children are entitled to enrol at their local public school.^{[footnote 59.]}Parents may apply to enrol their child in their local school of choice. However, acceptance is subject to the child being eligible to attend the school and the school being able to accommodate the child.^{[footnote 60.]}

Factors which are taken into consideration to determine whether a child is eligible and whether the government school can accommodate the child include:

• the type of school, for example, infants, primary, secondary, composite or schools for children with disability^{[footnote 61.]}
• the child's age
• the child's sex, for example single sex school
• the resources of the school
• the existing number of permanent classrooms and other facilities at that school.^{[footnote 62.]}

Provisions for children with disability under the Act

Under section 20 of the Education Act, the Minister for Education may provide or arrange special or additional assistance for government school children with special needs, such children with disability or children with significant learning difficulties.^{[footnote 63.]}Special or additional assistance may include the provision of financial assistance, facilities, courses of study, staff, staff training or distance education.^{[footnote 64.]}

Anti-Discrimination Act 1977

The Anti-Discrimination Act 1977 (ADA) makes it unlawful to discriminate in specified areas of public life against a person on grounds which include their sex, race, age, disability, and other types of discrimination in certain circumstances. The Act seeks to promote the equality of opportunity between all people.^{[footnote 65.]}

Under the ADA, disability is defined as:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.^{[footnote 66.]}

Part 4A of the ADA sets out what is unlawful discrimination on the grounds of disability. As provided by section 49A, a reference to a person's disability under the ADA, is a reference to a past, future or presumed disability.^{[footnote 67.]}

Disability discrimination in education is protected in section 49L of the ADA. This provision states that it is unlawful for an educational authority to discriminate against a person on the ground of disability:

• by refusing or failing to accept the person's application for admission as a student, or
• in the terms on which it is prepared to admit the person as a student.^{[footnote 68.]}

In addition, it is unlawful for an educational authority to discriminate against a student on the ground of disability:

• by denying the student access, or limiting the student's access, to any benefit provided by the educational authority,
• by expelling the student, or
• by subjecting the student to any other detriment.^{[footnote 69.]}

Section 49L(4) and (5) provide exceptions to educational authorities to discriminate against a person with a disability in circumstances where the person's admission, continued attendance or access to any benefit by the authority would cause 'unjustifiable hardship' on the authority.^{[footnote 70.]}

Section 49C of the ADA provides that 'unjustifiable hardship' includes:

• the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned
• the effect of the disability on a person concerned
• the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.^{[footnote 71.]}

In comparison, the Victorian Equal Opportunity Act 2010^{[footnote 72.]} makes it unlawful to discriminate against a person on the basis of disability. The Victorian legislation includes:

• a positive duty to eliminate discrimination^{[footnote 73.]}
• the requirement that an educational authority make reasonable adjustments for a person with a disability.^{[footnote 74.]}

Exceptions for 'private educational authorities'

Private schools are excluded from the scope of application of the ADA under section 4 of the Act. The exceptions for private educational institutions were introduced into the ADA in 1981 when the ground of 'physical impairment' became a protected ground under that Act.^{[footnote 75.]}

This exception for private educational authorities does not extend to legislation in other jurisdictions; New South Wales is the only jurisdiction in Australia that provides exceptions to allow private education providers to discriminate against a person on the basis of disability. This exception applies to staff as well as students with disability.^{[footnote 76.]}

Disability Discrimination Act 1992 (Commonwealth)

The Disability Discrimination Act 1992 (Cth) (DDA) makes it unlawful to discriminate against a person in many areas of public life because of a person's disability. While the definition of disability, subsections (a)–(g), in the DDA mirrors that of the ADA,^{[footnote 77.]} the DDA clarifies that 'a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability'.^{[footnote 78.]} The DDA covers disabilities that people have now, have had in the past, may have in the future or which they are believed to have.^{[footnote 79.]}

The DDA protects people with a disability against discrimination in the education context, including when enrolling or studying in a course at a government or non-government school, or a public or private college, or registered training provider.^{[footnote 80.]} Under the DDA, it is unlawful for an education authority to discriminate against a person on the ground of the person's disability:

• by refusing or failing to accept the person's application for admission as a student
• in the terms or conditions on which it is prepared to admit the person as a student.^{[footnote 81.]}

Direct discrimination can occur where the education authority refuses to make reasonable adjustments for the person with disability.^{[footnote 82.]}An adjustment under the DDA is a 'reasonable adjustment' unless making the adjustment would impose unjustifiable hardship on the person.^{[footnote 83.]} The Disability Standards for Education 2005 (Cth) provide further information on reasonable adjustments, which are discussed further in the following section.

It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability by denying or limiting the student access, to any benefit provided by the educational authority, or expelling the student.^{[footnote 84.]}

Under the DDA, it is not unlawful for a person to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an 'unjustifiable hardship' on the discriminator.

The considerations for an unjustifiable hardship are the same as those in the ADA. However, the DDA lists two additional considerations, namely the availability of financial and other assistance to the person claiming unjustifiable hardship, and any relevant disability action plans given to the Australian Human Rights Commission under section 64.^{[footnote 85.]}

Disability Standards for Education 2005

The Disability Standards for Education 2005 clarify obligations under the DDA in relation to education and training. The Disability Standards cover:

• the rights or entitlements of students in relation to education and training
• the obligations and responsibilities of educational authorities, institutions and other education providers, including the obligation to provide reasonable adjustments
• measures which if implemented will be evidence by of compliance and provide a defence against litigation.

The Disability Standard employs the same definitions as the DDA for the terms 'disability', 'educational authority' and 'discriminate'.^{[footnote 86.]} Education providers are bound by the Disability Standards, including preschools, government and non-government schools, post-compulsory education and training authorities, and higher education providers.

The Disability Standards detail the obligations on education providers to make reasonable adjustments to assist a student with a disability to participate in education and training on the same basis as students without a disability.^{[footnote 87.]} Education providers must consult with students and their family members or carers about reasonable adjustments.^{[footnote 88.]}

The Disability Standards also clarify circumstances where an education provider is exempted from making a reasonable adjustment where it would impose an unjustifiable hardship on them. The exemption does not apply to addressing harassment and victimisation.^{[footnote 89.]}

Complaints process

In New South Wales, a complainant can choose to pursue a disability complaint regarding:

• public schools, under the ADA with ADNSW
• either a public school or a private school, under the DDA with the AHRC
• a university, under the ADA or DDA.

The NSW Ombudsman also has power to investigate complaints regarding disability discrimination in New South Wales public agencies. The process to make a complaint to these various authorities is detailed below.

Complaints handling process by Anti-Discrimination NSW

Anti-Discrimination NSW administers the Anti-Discrimination Act 1977, and has the power to investigate complaints of unlawful discrimination against students with disability in public schools. However, as the ADA has exceptions for private educational authorities, Anti-Discrimination NSW cannot investigate complaints of discrimination against non-government schools and other private educational institutions.^{[footnote 90.]}

Under section 87A of the ADA, complaints of unlawful discrimination can be lodged with the President of the Board of Anti-Discrimination NSW. In accepting a complaint, the President must investigate,^{[footnote 91.]} and may endeavour to resolve the complaint by conciliation.^{[footnote 92.]} The President may decline a complaint during an investigation if satisfied that the complaint is being or should be dealt with by another person or body.^{[footnote 93.]}

The President may also refer the complaint to the NSW Civil and Administrative Tribunal (the Tribunal), if, for example, the President considered that a complaint cannot be resolved by conciliation.^{[footnote 94.]} The Minister for Education may also refer any matter to the Tribunal as a complaint.^{[footnote 95.]} The Anti-Discrimination Board of NSW also has powers to carry out investigations and inquiries relating to disability discrimination, in respect of New South Wales government schools.^{[footnote 96.]}

Complaints handling process by Australian Human Rights Commission

One of the functions of the Australian Human Rights Commission (AHRC) is to inquire into, and attempt to conciliate, complaints of unlawful discrimination.^{[footnote 97.]} This can include both public and private educational institutions.

Under section 46PF of the AHRC Act, once a complaint is lodged, the President is required to make inquiries into and attempt to conciliate such complaints. The President has powers to obtain information relevant to the inquiry and can direct parties to attend a compulsory conference.^{[footnote 98.]}

The President may terminate an inquiry for several reasons, including whether the complaint has already been dealt with by the Commission or by another statutory authority. Hence, a complainant who has lodged a complaint with the Anti-Discrimination NSW may be limited in their recourse under the AHRC Act.^{[footnote 99.]}

If a complaint under the AHRC has been terminated the complainant may make an application within 60 days to the courts alleging unlawful discrimination. Courts will not grant remedies for unlawful discrimination unless the complainant has first made a complaint to the AHRC and that complaint has been terminated.^{[footnote 100.]}

NSW Ombudsman

The NSW Ombudsman can receive complaints and, where appropriate, make investigations into the administrative conduct of the Department of Education, NSW Education Standards Authority, public schools and NSW public universities.^{[footnote 101.]} Complaints can be received from parents, carers, students, teachers, other employees, and the general public, as well as Members of Parliament on behalf of their constituents.

Should the complaints not settle at conciliation, caregivers and parents of children and young people with disabilities are required to make an application either to the Federal Circuit and Family Court of Australia^{[footnote 102.]} or the NSW Civil and Administrative Tribunal.^{[footnote 103.]}

Ageing and Disability Commission

The NSW Ageing and Disability Commission is an independent agency of the NSW Government, established on 1 July 2019.^{[footnote 104.]} The objective of the agency is 'protecting adults with disability and older people from abuse, neglect and exploitation, and protecting and promoting their rights'.^{[footnote 105.]} Under the Ageing and Disability Commissioner Act 2019, the Commissioner has several functions, including:

• dealing with allegations of abuse, neglect and exploitation of adults with disability and older adults, including by referring matters to appropriate persons or bodies and by conducting investigations, and
• to monitor, assess and report on the New South Wales implementation of Australia's Disability Strategy 2021-2031.^{[footnote 106.]}

The Official Community Visitor (OCV) scheme is part of the Ageing and Disability Commission.^{[footnote 107.]} OCVs are appointed by the Minister for Families, Communities and Disability Services under the Ageing and Disability Commissioner Act 2019, and the Children's Guardian Act 2019.^{[footnote 108.]} OCVs conduct visits to 'visitable services' and engage directly with residents and staff.^{[footnote 109.]}

The Commission's function to report on the Australia's Disability Strategy 2021-2031 encompasses children and young people with disability but the Commission advises that it currently does not have capacity to carry out this function.^{[footnote 110.]}

United Nations Convention on the Rights of Persons with Disabilities^{[footnote 111.]}

The United Nations Convention^{[footnote 112.]} on the Rights of Persons with Disabilities defines inclusive education as follows:

Inclusive education is where students of all abilities learn together in the same classroom environment. This means students with and without disabilities. It involves creating an education system where everyone can learn together and have their individual needs met. The focus is on quality education for all, ensuring that education providers, such as schools, colleges and universities, can support all students to achieve the best outcomes and participate fully. Inclusive education is about making system-wide changes so that all students can receive this standard of education. This means the education system must adapt to the needs of individuals, not the other way round.^{[footnote 113.]}

Inclusive education is markedly different from exclusion, segregation and integration, where students with disability might be denied their right to education altogether, have to learn in separate schools or classrooms, or be placed in mainstream classrooms without the right support.^{[footnote 114.]}

Committee comment

The committee notes the reports and recommendations by other various independent public inquiries and government bodies in the space of education and disability. In particular, we recognise that the recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability in relation to education and, specifically, phasing out special education settings, is divisive. The array of views regarding the recommendations of the Royal Commission will be explored in more detail throughout this report.

We also note the findings of the review into the National Disability Insurance Scheme, in particular that supports funded by the scheme often fail to integrate with the supports in the classroom, and a potential misunderstanding of the requirements of schools to meet the learning support needs of students regardless of their access to NDIS support.

We acknowledge the NSW Government has implemented 38 of the 39 recommendations of the 2017 report on students with a disability or special needs in New South Wales schools. This is a significant step towards promoting inclusion of all children in mainstream settings, with exceptions only for compelling individual reasons. However, the committee is aware substantial work is still needed in this space, hence this inquiry.

The legal framework for protecting students with disability from discrimination in educational settings is complicated, and potentially difficult for families and students to navigate. The committee is concerned about the different pathways and legal protections that depend on whether a student is attending a public or a private educational institution. In particular, the committee is dismayed that private education institutions continue to be exempt from anti-discrimination requirements of the Anti-Discrimination Act 1977. This issue will be addressed further in Chapter 6, with recommendations for legislative change.

The committee also notes that the Anti-Discrimination Act does not impose a requirement on education providers to consult with children and their families to ensure they are accessing education on an equitable basis, leaving the onus on the children and families to advocate for necessary adjustments and support in an education setting. We note that the ADA does not have a positive duty for educational institutions to make reasonable adjustments, which increases the burden on children and families. This will also be addressed further in Chapter 6.

Similarly, the committee notes the complaints process for resolving allegations of discrimination is complicated and potentially confusing for students and families and will be addressed further in Chapter 6.

The committee observes that the Ageing and Disability Commission has a potential role with regards to the rights of children and young people with disability, but notes that it currently does not appear to extend to investigating issues in educational settings. The committee notes that the Ageing and Disability Commission also made it clear that it is currently under-resourced significantly, so much so that it is struggling to even fulfill its basic statutory functions.

In terms of inclusive education and what this means, the committee finds there is a discrepancy in definitions between the Department of Education's Inclusive Education Statement for students with disability and the United Nations Convention on the Rights of Persons with Disabilities (CRPD).^{[footnote 115.]} In particular, the United Nations definition explicitly states that inclusive education means students are educated 'in the same classroom' and 'learn together'. In contrast, the Department of Education refers to 'system inclusion' with no explicit reference to children with and without disability learning together. This is of concern to the committee as the department should be making genuine efforts to provide for inclusive education and the integration of children and young people with disability in mainstream educational settings, via a clear and prescriptive definition in accordance with our obligations under the CRPD. The committee notes that Australia was one of the first countries to sign the CRPD on 30 March 2007, and ratify the CRPD on 17 July 2008.^{[footnote 116.]}

End of Chapter 3.

Continue to Cha​pter 4 | Return to​ table of contents​​​​

Chapter 3 Footnote

Footnote 1: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, September 2023, Executive Summary, p 40. Back to reference

Footnote 2: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, September 2023, Executive Summary, p xi. Back to reference

Footnote 3: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, September 2023, vol 7, p 10. Back to reference

Footnote 4: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, September 2023, vol 7, pp 13-17. Back to reference

Footnote 5: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, September 2023, vol 7, pp 18-23. Back to reference

Footnote 6: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, September 2023, vol 7, pp 24-25. Relevant erratum:This should read 'Three Commissioners recommended retaining special education settings while facilitating smoother transitions and interactions between non-mainstream and mainstream schools (Recommendation 7.15)', Errata​ tabled 4 September 2024. Back to reference

Footnote 7: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, September 2023, vol 7, pp 25-26. Back to reference

Footnote 8: Australian Government, Department of Social Services, Joint Australian, State and Territory Response to the Disability Royal Commission https://www.dss.gov.au/disability-and-carers-disability-royal-commission-support-services/joint-government-response-0, pp 32, 34 and 38. Back to reference

Footnote 9: Australian Government, Department of Social Services, Joint Australian, State and Territory Response to the Disability Royal Commission https://www.dss.gov.au/disability-and-carers-disability-royal-commission-support-services/joint-government-response-0, p 41. Back to reference

Footnote 10: NSW Government, Appendix A:NSW Government response to Disability Royal Commission recommendations, 31 July 2024, https://dcj.nsw.gov.au/documents/community-inclusion/disability-inclusion/royal-commission-into-violence-abuse-neglect-and-exploitation-of-people-with-disability/nsw-government-response-to-the-disability-royal-commission-recommendations-appendix-a.pdf, p 73. Back to reference

Footnote 11: National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), June 2013. Back to reference

Footnote 12: National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), ss 7.10, 7.14 and 7.15. Back to reference

Footnote 13: National Disability Insurance Scheme Working together to deliver the NDIS, Final Report, December 2023, p 69. Back to reference

Footnote 14: National Disability Insurance Scheme Working together to deliver the NDIS, Final Report, December 2023, p 4. Back to reference

Footnote 15: National Disability Insurance Scheme Working together to deliver the NDIS, Final Report, December 2023, p 5. Back to reference

Footnote 16: Portfolio Committee No. 3 - Education, NSW Legislative Council, Education of students with a disability or special needs in New South Walesschools (2017), pp xi and xv. Back to reference

Footnote 17: Portfolio Committee No. 3 - Education, NSW Legislative Council, Education of students with a disability or special needs in New South Walesschools (2017), pp xi-xv. Back to reference

Footnote 18: Portfolio Committee No. 3 - Education, NSW Legislative Council, Education of students with a disability or special needs in New South Wales schools (2017), p xi. Back to reference

Footnote 19: Correspondence from Minister for Education Robert Gordon Stokes to the Clerk of the Parliaments, providing government response to the inquiry into students with a disability or special needs in New South Wales Schools, 21 March 2018. Back to reference

Footnote 20: Government response to the inquiry into students with a disability or special needs in New South Wales schools, 21 March 2018, Introduction. Back to reference

Footnote 21: Government response to the inquiry into students with a disability or special needs in New South Wales schools, 21 March 2018, pp 1 and 3. Back to reference

Footnote 22: Government response to the inquiry into students with a disability or special needs in New South Wales schools, 21 March 2018, p 1. Back to reference

Footnote 23: Answers to supplementary questions, NSW Department of Education, 10 May 2024, p 1. Back to reference

Footnote 24: Evidence, Mr Martin Graham, Deputy Secretary, Teaching, Learning and Student Wellbeing, NSW Department of Education, 23 April 2024, p 41. Back to reference

Footnote 25: Submission 29, NSW Government, p 3. Back to reference

Footnote 26: Submission 29, NSW Government, p 2. Back to reference

Footnote 27: NSW Government, NSW Department of Education, Our Plan for NSW Public Education: Transforming lives through learning, 2024-27, https://education.nsw.gov.au/about-us/strategies-and-reports/plan-for-nsw-public-education#Our2, p 15. Back to reference

Footnote 28: NSW Department of Education, Disability Strategy: A living document, education.nsw.gov.au/content/dam/main-education/teaching-and-learning/disability-learning-and-support/media/documents/disability-strategy-2019-online.pdf, p 1. Back to reference

Footnote 29: Submission 29, NSW Government, p 2. Back to reference

Footnote 30: Department of Education, Disability Strategy (3 May 2022), https://education.nsw.gov.au/schooling/school-community/our-disability-strategy/disability-strategy#Our5. Back to reference

Footnote 31: Submission 29, NSW Government, p 3. Back to reference

Footnote 32: Submission 29, NSW Government, pp 2-3. Back to reference

Footnote 33: Department of Education, Inclusive Education for students with disability (14 March 2024), https://education.nsw.gov.au/policy-library/policies/pd-2005-0243, section 2.1. Back to reference

Footnote 34: NSW Department of Education, Inclusive Education Statement for students with disability, https://education.nsw.gov.au/content/dam/main-education/teaching-and-learning/disability-learning-and-support/our-disability-strategy/inclusive-education/Inclusive-Education-Statement.pdf, pp 2-3. Back​ to reference

Footnote 35: Submission 29, NSW Government, p 36. Back to reference

Footnote 36: Department of Education, Suspension and expulsion procedures (30 January 2024), https://education.nsw.gov.au/policy-library/policyprocedures/pd-2006-0316/pd-2006-0316-06. Back to reference

Footnote 37: Department of Education, Suspension and expulsion procedures (30 January 2024), https://education.nsw.gov.au/policy-library/policies/pd-2006-0316-06. Back to reference

Footnote 38: Department of Education, Suspension and expulsion procedures (30 January 2024), https://education.nsw.gov.au/policy-library/policyprocedures/pd-2006-0316/pd-2006-0316-06. Back to reference

Footnote 39: Department of Education, Suspension and expulsion procedures (30 January 2024), https://education.nsw.gov.au/policy-library/policyprocedures/pd-2006-0316/pd-2006-0316-06. Back to reference

Footnote 40: Department of Education, Suspension and expulsion procedures (30 January 2024), https://education.nsw.gov.au/policy-library/policyprocedures/pd-2006-0316/pd-2006-0316-06. Back to reference

Footnote 41: Department of Education, Restrictive Practices, (25 August 2023), https://education.nsw.gov.au/schooling/school-community/restrictive-practices. Back to reference

Footnote 42: Department of Education, Restrictive practices, NSW Government, https://education.nsw.gov.au/schooling/school-community/restrictive-practices#Policy1. Back to reference

Footnote 43: Department of Education, Restrictive Practices, (25 August 2023), https://education.nsw.gov.au/schooling/school-community/restrictive-practices. Back to reference

Footnote 44: Submission 29, NSW Government, p 38. Back to reference

Footnote 45: NSW Education Standards Authority, HSC disability provisions guide for teachers and parents, https://www.nsw.gov.au/education-and-training/nesa/hsc/disability-provisions/guide/what-are-hsc-disability-provisions. Back to reference

Footnote 46: NSW Education Standards Authority, Disability provisions, https://www.nsw.gov.au/education-and-training/nesa/hsc/disability-provisions. Back to reference

Footnote 47: Submission 29, NSW Government, p 31. Back to reference

Footnote 48: NESA, Applying for HSC disability provision, NSW Government, https://www.nsw.gov.au/education-and-training/nesa/hsc/disability-provisions/guide/applying-for-hsc-disability-provisions. Back to reference

Footnote 49: Submission 29, NSW Government, p 26. Back to reference

Footnote 50: See, NESA, School registration and accreditation manuals, https://www.nsw.gov.au/education-and-training/nesa/registration-and-compliance/non-government-schools/registration-accreditation-manuals; NESA, NSW Registration Process for the Government Schooling System Manual, September 2023, https://www.nsw.gov.au/sites/default/files/2023-08/nsw-registration-process-for-the-government-schooling-system-manual.pdf, p 2. Back to reference

Footnote 51: Submission 29, NSW Government, pp 18-19. Back to reference

Footnote 52: NESA, NSW Registration Process for the Government Schooling System Manual, September 2023, https://www.nsw.gov.au/sites/default/files/2023-08/nsw-registration-process-for-the-government-schooling-system-manual.pdf, pp 2-3. Back to reference

Footnote 53: See, NESA, NSW Registered and Accredited Individual Non-government Schools Manual, September 2023, https://www.nsw.gov.au/sites/default/files/2023-08/nsw-registered-and-accredited-individual-non-government-schools-manual.pdf, p 42-48; NESA, NSW Registration Process for the Government Schooling System Manual, September 2023, NSW Government, https://www.nsw.gov.au/sites/default/files/2023-08/nsw-registration-process-for-the-government-schooling-system-manual.pdf, pp 10-12. Back to reference

Footnote 54: See, NESA, NSW Registered and Accredited Individual Non-government Schools Manual, September 2023, https://www.nsw.gov.au/sites/default/files/2023-08/nsw-registered-and-accredited-individual-non-government-schools-manual.pdf, p 58; NESA, NSW Registration Process for the Government Schooling System Manual, September 2023,https://www.nsw.gov.au/sites/default/files/2023-08/nsw-registration-process-for-the-government-schooling-system-manual.pdf, pp 16-17. Back to reference

Footnote 55: Submission 29, NSW Government, pp 32-33. Back to reference

Footnote 56: NESA, NSW Registered and Accredited Individual Non-government Schools Manual, September 2023, p 81, https://www.nsw.gov.au/sites/default/files/2023-08/nsw-registered-and-accredited-individual-non-government-schools-manual.pdf. Back to reference

Footnote 57: Education Act 1990, s 21B, Note: this section also outlines that students may leave school at the end of Year 10 if they are participating in approved education or training or in paid work; Submission 29, NSW Government, p 17. Back to reference

Footnote 58: Education Act 1990, s 22(1). Back to reference

Footnote 59: Education Act 1990, s 34. Back to reference

Footnote 60: Education Act 1990, s 34(1). Back to reference

Footnote 61: See Education Act 1990, s 29, for the kinds of school that may be established by the Minister. Back to reference

Footnote 62: Education Act 1990, s 34(6). Back to reference

Footnote 63: Education Act 1990, s 20. Back to reference

Footnote 64: Under the Education Act 1990, s 3, distance education means 'a form of education in which students and teachers are not regularly in the presence of each other but communicate with each other in writing, by print or by electronic or like means'. Home schooling, in comparison, means 'schooling in the child's home, other than distance education provided by a government or registered non-government school in which the child is enrolled'. Back to reference

Footnote 65: Anti-Discrimination Act 1977, Long title. Back to reference

Footnote 66: Anti-Discrimination Act 1977, s 4, Definitions, disability. Back to reference​

Footnote 67: Anti-Discrimination Act 1977, s 49A. Back to reference

Footnote 68: Anti-Discrimination Act 1977, s 49L(1). Back to reference

Footnote 69: Anti-Discrimination Act 1977, s 49L(2). Back to reference

Footnote 70: Anti-Discrimination Act 1977, ss 49L(4) and (5). Back to reference

Footnote 71: Anti-Discrimination Act 1977, s 49C. Back to reference

Footnote 72: Submission 32, Youth Law Australia, pp 2 and 5; Submission 36, Anti-Discrimination NSW, p 3. Back to reference

Footnote 73: Evidence, Ms Meredith Hagger, Principal Solicitor, General Practice, Youth Law Australia, 26 March 2024, p 2. Back to reference

Footnote 74: Equal Opportunity Act 2010 (Vic), section 40. Back to reference

Footnote 75: Anti-Discrimination Amendment Act 1981; Submission 36, Anti-Discrimination Australia NSW, p 4. Back to reference

Footnote 76: Submission 36, Anti-Discrimination NSW, p 4. Back to reference

Footnote 77: Disability Discrimination Act 1992 (Cth), s 4. Back to reference

Footnote 78: See Education Act 1990, s 29, for the kinds of school that may be established by the Minister. Back to reference

Footnote 79: Disability Discrimination Act 1992 Cth), s 4, Definitions, disability, ss (a)-(k). Back to reference

Footnote 80: Disability Discrimination Act 1992 Cth), s 22. Back to reference

Footnote 81: Disability Discrimination Act 1992, s 22(1). Back to reference

Footnote 82: Disability Discrimination Act 1992, s 5 (1). Back to reference

Footnote 83: Disability Discrimination Act 1992, s 4, Definitions, reasonable adjustment. Back to reference

Footnote 84: Disability Discrimination Act 1992, s 22(2). Back to reference

Footnote 85: Disability Discrimination Act 1992, s 11. Back to reference

Footnote 86: Disability Standards for Education 2005, s 1.4. Back to reference

Footnote 87: Disability Standards for Education 2005, s 3.4, note. Back to reference

Footnote 88: Disability Standards for Education 2005, s 3.5. Back to reference

Footnote 89: Disability Standards for Education 2005, s 8. Back to reference

Footnote 90: Submission 36, Anti-Discrimination NSW, pp 1 and 3. Back to reference

Footnote 91: Anti-Discrimination Act 1977, s 89B(1) and 90. Back to reference

Footnote 92: Anti-Discrimination Act 1977, s 91A. Back to reference

Footnote 93: Anti-Discrimination Act 1977, s 92. Back to reference

Footnote 94: Anti-Discrimination Act 1977, s 93C; See also section 94 which provides that a complaint may also be referred to the Tribunal by the Present under the Anti-Discrimination Act 1977, ss 90B, 93A, and 93B. Back to reference

Footnote 95: Anti-Discrimination Act 1977, s 93C(2). Back to reference

Footnote 96: Anti-Discrimination Act 1977, s 119. Back to reference

Footnote 97: Australian Human Rights Commission Act 1986. s 46P. Back to reference

Footnote 98: Australian Human Rights Commission Act 1986, section 46PJ. Back to reference

Footnote 99: Submission 36, Anti-Discrimination NSW, p 4. Back to reference

Footnote 100: Australian Human Rights Commission Act 1986, section 46PO. Back to reference

Footnote 101: Ombudsman NSW, Complaints we handle, https://www.ombo.nsw.gov.au/Making-a-complaint/complaints-we-handle. Back to reference

Footnote 102: The Federal Circuit and Family Court of Australia has jurisdiction over civil matters arising under Part IIB or IIC of the Australian Human Rights Commission Act 1986. Those parts deal with complaints regarding unlawful discrimination, including on the basis of disability under Disability Discrimination Act 1992. Back to reference

Footnote 103: Submission 75, Australian Centre for Disability Law, p 21. Relevant erratum: This paragraph should be deleted as the text does not apply to complaints handled by the NSW Ombudsman and the substance of this paragraph has been covered in earlier paragraphs, Errata​ ​tabled 4 September 2024. Back to reference

Footnote 104: Submission 54, Ageing and Disability Commission, p 1. Back to reference

Footnote 105: Submission 54, Ageing and Disability Commission, p 1. Back to reference

Footnote 106: Ageing and Disability Commissioner Act 2019, s 12. Back to reference

Footnote 107: Ageing and Disability Commissioner Act 2019, Part 4. Back to reference

Footnote 108: While the scheme is administered under both acts, the Ageing and Disability Commission manages the full scheme on behalf of both agencies, under a memorandum of understanding with the Office of the Children's Guardian. Back to reference

Footnote 109: Ageing and Disability Commissioner Act 2019, s 20. Back to reference

Footnote 110: Submission 54, Ageing and Disability Commission, p 4. Back to reference

Footnote 111: Relevant erratum: The subheading 'United Nations Convention on the Rights of Persons with Disabilities' should read 'United Nations Committee on the Rights of Persons with Disabilities', Errata​ ​tabled 4 September 2024. Back to reference

​Footnote 112: Relevant erratum: This should read 'The United Nations Committee on the Rights of Persons with Disabilities defines inclusive education as follows', Errata​ tabled 4 September 2024. Back to reference

Footnote 113: United Nations, General comment No. 4 on Article 24 - the right to inclusive education, 25 November 2016, https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.ohchr.org%2Fsites%2Fdefault%2Ffiles%2FDocuments%2FHRBodies%2FCRPD%2FGC%2FPlainEnglish_GC_No.4_TheRight_Inclusive_Education.docx&wdOrigin=BROWSELINK Back to reference

Footnote 114: United Nations, General comment No. 4 on Article 24 - the right to inclusive education, 25 November 2016, https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.ohchr.org%2Fsites%2Fdefault%2Ffiles%2FDocuments%2FHRBodies%2FCRPD%2FGC%2FPlainEnglish_GC_No.4_TheRight_Inclusive_Education.docx&wdOrigin=BROWSELINK Back to reference

Footnote 115: Relevant erratum: should read 'United Nations Committee on the Rights of Persons with Disabilities', Errata​ tabled 4 September 2024. Back to reference

Footnote 116:  Relevant erratum: This paragraph stated that: The committee notes that Australia was one of the first countries to sign the CRPD on 30 March 2007, and ratify the CRPD on 17 July 2008. This should read: The committee notes that Australia was one of the first countries to sign the United Nations Convention on the Rights of Persons with Disabilities on 30 March 2007, and ratify the United Nations Convention on the Rights of Persons with Disabilities on 17 July 2008.', Errata tabled 4 September 2024. ​Back to reference

Footnote 117: Relevant erratum: Finding 6 states: 'The Department of Education's definition of inclusive education, as outlined in the Inclusive Education Statement for students with disability, is not consistent with inclusive education as described in the United Nations Convention on the Rights of Persons with Disabilities.' This should read: Finding 6: The Department of Education's definition of inclusive education, as outlined in the Inclusive Education Statement for students with disability, is not consistent with inclusive education as described by the United Nations Committee on the Rights of Persons with Disabilities.', Errata tabled 4 September 2024. Back to reference​