EXPLANATORY STATEMENT

Issued by the authority of the Attorney-General

Disability Discrimination Act 1992

Disability Standards for Education Amendment Standards 2025

Authority

Subsection 31(1) of the Disability Discrimination Act 1992 (the Act) provides that the Attorney-General may, by legislative instrument, formulate standards in relation to any area in which it is unlawful under Part 2 of the Act for a person to discriminate against another person on the ground of a disability of the other person.

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Legislative background 

The Act provides that discrimination (direct or indirect) on the basis of disability is unlawful in a broad range of areas of public life, including employment, accommodation, education, access to premises, clubs and sports, the provision of goods, facilities, services and land, existing laws and the administration of Commonwealth laws and programs. Disability is broadly defined so as to include physical, sensory, intellectual and psychiatric disability that occurs in the past, present, or future, or is imputed.

Subsection 31(1) of the Act provides that the Attorney-General may, by legislative instrument, formulate standards in relation to any area in which it is unlawful under Part 2 of the Act for a person to discriminate against another person on the ground of a disability of the other person. Under section 32 of the Act, it is unlawful for a person to contravene a disability standard. Section 34 of the Act provides that, if a person acts in accordance with a disability standard, Part 2 of the Act does not apply to the person’s action—that is, the person’s action complies with the Act and is not made unlawful by it.

Part 2 of the Act makes it unlawful to discriminate against another person on the ground of a disability of the other person in the area of education. The Disability Standards for Education 2005 (the Principal Standards) are standards formulated under the Act in relation to the area of education. They currently set out standards for education providers in the areas of: enrolment; participation; curriculum development, accreditation and delivery; student support services; and elimination of harassment and victimisation.

Part 2 of the Act also makes it unlawful to discriminate against another person on the ground of a disability of the other person in the area of the provision of services, including educational early childhood services. Persons providing an educational early childhood service must comply with the Act. However, there are currently no disability standards that apply to persons in relation to the provision of an educational early childhood service to children with a disability, unless they are an education provider and the child is a student or prospective student to whom the Principal Standards currently apply.

Purpose and operation of amendments

The purpose of the Disability Standards for Education Amendment Standards 2025 (the Amendment Standards) is to amend the Principal Standards so they apply in relation to children enrolled in or seeking admission to educational early childhood services, in the same way that they apply to children who are students enrolled in or seeking admission to educational institutions. This involves amending the Principal Standards to extend their application to educational early childhood service providers, in addition to education providers.

The Principal Standards will be amended by the Amendment Standards to:

• continue to apply to education providers – meaning an educational institution, an educational authority, or an organisation whose purpose is to develop or accredit curricula or training courses used by other education providers;
• apply to educational early childhood service providers as if they were education providers who are educational institutions;
• apply to educational early childhood services as if they were courses or programs offered by education providers;
• apply to children enrolled in educational early childhood services as if those children were students enrolled in educational institutions;
• apply to children seeking admission to, or applying for enrolment in, educational early childhood services (including where an associate of the child seeks the admission or applies for the enrolment) as if those children were prospective students of educational institutions; and
• in relation to Part 6, also apply to persons who provide a service of developing or accrediting curricula, learning frameworks or training courses to, or for use by, an educational early childhood service provider in providing educational early childhood services as if such persons were education providers.

The Amendment Standards also make minor, technical and consequential amendments to the Principal Standards, including to reflect changes to the Act, change the names of positions, reflect changes in drafting practices to use gender neutral language and clarify the expression of some of the existing provisions.

Preconditions

Subsection 31(3) of the Act provides that, before making a standard under subsection 31(1) of the Act, the Attorney-General must take into consideration any comments made to the Attorney-General by a Minister of a State or Territory who is responsible for matters relating to disability discrimination.

The Attorney-General consulted the relevant Ministers on an exposure draft of the Amendment Standards between November 2024 and July 2025, and then took into consideration comments made by them before making the Amendment Standards.

Regulation Impact Statement

The 2020 Review of the Disability Standards for Education 2005 (2020 Review) recommended amendments to the Principal Standards to include early childhood education and care (ECEC). This recommendation (Recommendation 12) was made following extensive public consultation as part of the 2020 Review. In 2021, the Hon Alan Tudge, the then Minister for Education and Youth, agreed to implement the recommendations of the 2020 Review.

The Office of Impact Analysis (OIA) has been consulted and agreed that an Impact Analysis Equivalent (IAE) is required to support the proposed amendments to the Principal Standards to include ECEC services. The OIA reference is OBPR22-01488.

The IAE comprises:

• the 2020 Review of the Disability Standards for Education 2005 (Attachment A), which recommended the inclusion of ECEC services (Recommendation 12), and
• an Impact Analysis Supplementary Report (Attachment B), which assesses the impacts of three policy options.

There were three options outlined in the IAE. Option one was to maintain the status quo and make no changes to the Principal Standards. Option two proposed amending the Principal Standards to include ECEC services that are legally required to deliver an education program based on an approved learning framework to children under 13 years of age. Option three proposed to amend the Principal Standards to include all ECEC service providers.

Following extensive consultation from 2021 to 2025 with governments, education providers, ECEC stakeholders, disability stakeholders and the public, Option 2 was identified as the preferred approach to including ECEC services.

Option 2 was the foundation for the development of the definition of ‘educational early childhood service’ which is inserted into the Principal Standards by the Amendment Standards. An ‘educational early childhood service’ includes a service that is approved under a law of a State or a Territory to provide child care or a preschool program, and is legally required to provide children enrolled in the service with an educational program that is based on a learning framework approved by one or more of: the specified Ministerial Council; the Commonwealth or an official or authority of the Commonwealth; a State or Territory or an official or authority of the State or Territory. An ‘educational early childhood service’ also includes an approved child care service (as defined by section 194G of the A New Tax System (Family Assistance) (Administration) Act 1999). Approved child care services are approved to administer the Child Care Subsidy provided by the Australian Government. Such approved child care services are required to provide an education program or be equipped to provide high quality child care including an educational program, either as a result of the needing to be licenced or registered to operate under a law of a State or Territory, or under the Child Care Subsidy Minister’s Rules 2017.

Option 2 was found to:

• clarify provider responsibilities,
• minimise regulatory burden, and
• deliver the greatest net benefit to children with disabilities and their families.

A multi-criteria analysis showed that Option 2 provides the greatest net benefit of the three options considered.

Minor refinements were then made to the proposed amendments following public consultation, including amendments to achieve greater clarity about who is an early childhood service provider that will need to comply with the Principal Standards, once amended by the Amendment Standards.

Regulatory burden measurement

An independent regulatory burden analysis was conducted for the preferred option (Option 2). The analysis used population data and standard cost assumptions to estimate first-year impacts on educators, providers and families.

Key cost drivers include:

• time for ECEC staff to understand the changes (1 hour per staff member),
• time for qualified staff to update policies and procedures (1 hour),
• time for parents/carers to understand the changes (0.5 hours per child).

Costs are expected only in the first year of implementation, with no ongoing burden beyond existing obligations under the Act. Community organisations were assessed to have negligible impact due to their small size and number.

Estimated first-year costs:

• ECEC providers: $31.22 million
• Parents/carers: $1.23 million
• Community organisations: negligible
• Total: $32.45 million.

No ongoing increase in administrative burden was identified.

Commencement

The Amendment Standards will commence on the later of: 1 August 2026; and the day after the last day on which a resolution disallowing the instrument could be passed by either House of the Parliament under the Legislation Act 2003. However, the provisions do not commence at all if the instrument or provision of the instrument is disallowed or taken to have been disallowed under that Act.

Consultation

The effectiveness of the Principal Standards in achieving their objects, is reviewed every five years (see paragraph 11.1(b) of the Principal Standards). This includes considering whether any amendments to the Principal Standards are desirable. The 2010, 2015 and 2020 reviews of the Principal Standards recommended that they be amended to extend their application to early childhood education and care (ECEC) sector. Specifically, the 2020 Review recommended that the Australian Government prepare draft amendments to the Standards to incorporate ECEC for sector consultation.

Consultation on the policy settings underlying the Amendment Standards commenced in 2021 and was informed by an independent analysis of costs and benefits. Public consultation on an exposure draft of proposed amendments was conducted from 31 January to 28 February 2025. During this period, members of the public were invited to make submissions to the Department of Education in response to a consultation paper and the exposure draft. In addition to public input, consultation was undertaken with state and territory Attorneys-General, Ministers for Education and Ministers responsible for matters relating to disability discrimination.

Consultation feedback was strongly supportive of the amendments proposed in the exposure draft and various amendments were suggested, including clarifying who would need to comply with the Principal Standards, once amended by the Amendment Standards. As a result of the consultation feedback, the Commonwealth refined the provisions that identify who and how the Principal Standards will apply in relation to the ECEC sector to ensure they operate as per the policy intent explained the consultation paper relating to the exposure draft.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Disability Standards for Education Amendment Standards 2025

The Disability Standards for Education Amendment Standards 2025 (the Amendment Standards) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview

The Disability Discrimination Act 1992 (the Act) provides that discrimination (direct or indirect) on the basis of disability is unlawful in a broad range of areas of public life including employment, accommodation, education, access to premises, clubs and sports, the provision of goods, facilities, services and land, existing laws and the administration of Commonwealth laws and programs. Disability is broadly defined so as to include physical, sensory, intellectual and psychiatric disability that occurs in the past, present, or future, or is imputed.

Subsection 31(1) of the Act provides that the Attorney-General may, by legislative instrument, formulate standards in relation to any area in which it is unlawful under Part 2 of the Act for a person to discriminate against another person on the ground of a disability of the other person. Under section 32 of the Act, it is unlawful for a person to contravene a disability standard. Section 34 of the Act provides that, if a person acts in accordance with a disability standard, Part 2 of the Act does not apply to the person’s action or, in other words, the person’s action complies with the Act and is not made unlawful by it.

Part 2 of the Act makes it unlawful to discriminate against another person on the grounds of a disability of the other person in the area of education. The Disability Standards for Education (2005) (the Principal Standards) are standards formulated under the Act in relation to the area of education. They currently set out standards for education providers in the areas of: enrolment; participation; curriculum development, accreditation and delivery; student support services; and elimination of harassment and victimisation.

Part 2 of the Act also makes it unlawful to discriminate against another person on the grounds of a disability of the other person in the area of the provision of services, including educational early childhood services. Persons providing an educational early childhood service must comply with the Act. However, there are currently no disability standards that apply to persons in relation to the provision of an educational early childhood service to children with a disability, unless they are an education provider and the child is a student or prospective student to whom the Principal Standards currently apply.

The purpose of the Disability Standards for Education Amendment Standards 2025 (the Amendment Standards) is to amend the Principal Standards to apply Standards to children enrolled in or seeking admission to educational early childhood services in the same way that they apply to children who are students enrolled in or seeking admission to educational institutions. This involves amending the Principal Standards to extend their application to educational early childhood service providers, in addition to education providers.

The Principal Standards will be amended by the Amendment Standards to:

• continue to apply to education providers – meaning an educational institution, an educational authority, or an organisation whose purpose is to develop or accredit curricula or training courses used by other education providers;
• apply to educational early childhood service providers as if they were education providers who are educational institutions;
• apply to educational early childhood services as if they were courses or programs offered by education providers;
• apply to children enrolled in educational early childhood services as if those children were students enrolled in educational institutions;
• apply to children seeking admission to, or applying for enrolment in, educational early childhood services (including where an associate of the child seeks the admission or applies for the enrolment) as if those children were prospective students of educational institutions; and
• in relation to Part 6, also apply to persons who provide a service of developing or accrediting curricula, learning frameworks or training courses to, or for use by, an educational early childhood service provider in providing educational early childhood services as if such persons were education providers.

The Amendment Standards also make minor, technical and consequential amendments to the Principal Standards, including to reflect changes to the Act, change the names of positions, reflect changes in drafting practices to use gender neutral language and clarify the expression of some of the existing provisions.

Human rights implications

The Amendment Standards engage the following rights:

• Right to equality and non-discrimination in Article 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 5 of the Convention on the Rights of Persons with Disabilities (CRPD)
• Rights of persons with disabilities in article 9 of the Convention on the Rights of Persons with Disabilities (CRPD)
• Right of a child with a disability to a full and decent life under article 23 of the Convention on the Rights of the Child (UNCRC).

Right to equality and non-discrimination

Article 26 of the ICCPR and Article 5 of the CRPD provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Amendment Standards promote the right of a child with a disability to equal protection of the law by amending the Principal Standards to extend their application to:

• children enrolled in educational early childhood services as if those children were students enrolled in educational institutions; and
•  children seeking admission to, or applying for enrolment in, educational early childhood services (including where an associate of the child seeks the admission or applies for the enrolment) as if those children were prospective students of educational institutions.

This measure will have a beneficial impact on the right to equality and non-discrimination because it will ensure that the same standards apply to students enrolled in educational institutions and children enrolled in educational early childhood services.

Rights of persons with disabilities

Article 9 of the CRPD recognises the right of persons with disabilities to participate fully in all aspects of life. To achieve this, countries must take appropriate steps to give people with disability access, in the same way others have access, to things, places, transport, information and services that are open to the public. 

Article 4 of the CRPD establishes a general obligation to promote the full realisation of all human rights for all persons with disabilities without discrimination of any kind on the basis of disability, including denial of ‘reasonable accommodation’. ‘Reasonable accommodation’ means providing necessary and appropriate modifications and adjustments, which do not impose a disproportionate or undue burden, where needed in a particular case. Article 4 of the CRPD recognises the right of persons with disabilities to be consulted and actively involved in decision-making processes concerning issues relating to people with disability.

This measure promotes the right of persons with disabilities, being children enrolled in educational early childhood services and children seeking admission to, or applying for, enrolment in early childhood services (including where an associate of the child seeks the admission or applies for the enrolment). The Amendment Standards will have the effect of requiring educational early childhood service providers to consult the child or an associate of the child (such as a parent or carer of the child), before making reasonable adjustments for that child. It will also have the effect of requiring such service providers to take into account the views of the child or their associate in assessing whether a particular adjustment is reasonable. This measure will thereby promote the right of persons with disabilities, as it supports such persons to participate fully in educational early childhood services.

Right of a child with a disability to a full and decent life

Article 23 of the UNCRC recognises the right of a child with a disability to a full and decent life that is dignified, promotes self-reliance and facilitates the child’s active participation in the community, including by receiving appropriate special care in recognition of the child’s needs.

The Amendment Standards promote the right of a child with a disability to a full and decent life by applying the Principal Standards to educational early childhood service providers. This measure will help to ensure that children with a disability are given appropriate access to educational early childhood services and will assist in facilitating the child’s active participation in those services.

This measure will thereby promote the right of a child with a disability to a full and decent life by supporting their early childhood development, consequently helping to facilitate the child’s active participation in the community.

Right to Education

Article 13 of the ICESCR recognises the right of everyone to education, which is directed towards the full development of the human personality and the sense of its dignity, and to enable all persons to participate effectively in society. Read with Article 2 of the ICESCR, the right of everyone to education is to be exercised without discrimination of any kind. Articles 28 and 29 of the UNCRC recognises the right of the child to education that is accessible to all and is administered in a manner consistent with the child’s human dignity. Read with Article 2 of the UNCRC, the right of the child to education is to be ensured without discrimination of any kind, including the child’s disability.

The Amendment Standards promote the right to education by applying disability standards for education to educational early childhood service providers. This measure will support access and participation of children with a disability in educational early childhood services.

Conclusion

The Amendment Standards are compatible with human rights because they promote the rights of a child with a disability to equality and non-discrimination under the ICCPR and CRPD, the rights of persons with disabilities under the CRPD, and the right to a full and decent life under the UNCRC, and the right to education under the ICESCR and the UNCRC.

The Hon Michelle Rowland MP
Attorney-General

Detailed explanation of the provisions of the Disability Standards for Education Amendment Standards 2025

Section 1 – Name

This section provides that the title of this instrument is the Disability Standards for Education Amendment Standards 2025 (the Amendment Standards).

Section 2 – Commencement

This section provides that the Amendment Standards commence on the later of:

1.    1 August 2026; and
2.    the day after the last day on which a resolution disallowing the instrument could be passed by either House of the Parliament under the Legislation Act 2003.

However, the provisions do not commence at all if the instrument or provision of the instrument is disallowed or taken to have been disallowed under that Act.

Section 3 – Authority

This section provides that the Amendment Standards are made under subsection 31(1) of the Disability Discrimination Act 1992 (the Act).

Section 4 – Schedules

This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.

The only instrument that is specified in the Schedules is the Disability Standards for Education 2005 (the Principal Standards).

Schedule 1 – Amendments about providers

Disability Standards for Education 2005

Items [1], [2], [3], [4], [5], [6], [7] – Introduction

Items 1 – 7 amend the Introduction to the Principal Standards to reflect and explain the application of the Principal Standards, as amended by the Amendment Standards, to educational early childhood service providers.

Item 1 repeals and replaces paragraph one of the Introduction to the Principal Standards. The purpose of this item is to amend the Introduction to better explain that the Principal Standards, as amended by the Amendment Standards, are formulated by the Commonwealth Attorney-General under subsection 31(1) of the Act and that section 31 of the Act enables the Attorney-General to formulate disability standards in relation to areas in which it is unlawful, under Part 2 of the Act, to discriminate on the basis of disability. Part 2 of the Act provides that it is unlawful to discriminate on the basis of disability in the areas of education and the provision of services (including educational early childhood services).

Item 2 repeals and replaces paragraph two of the Introduction to the Principal Standards. The purpose of this item is to amend the Introduction to explain that section 24 of the Act makes it unlawful for a service provider to discriminate against a person on the ground of the person’s disability.

Items 3 – 5 make minor amendments to paragraphs three, four and five of the Introduction to the Principal Standards so that the paragraphs properly describe the application of the Principal Standards as amended by the Amendment Standards to the provision of educational early childhood services.

Item 6 repeals and replaces paragraph 6 of the Introduction to the Principal Standards. The purpose of this item is to expand the paragraph to explain that each Part of the Principal Standards states the rights of students with disabilities in relation to education and training, and children with disabilities in relation to educational early childhood services, and that the purpose of the statements of rights is to assist people to understand and comply with the Principal Standards.

Item 7 repeals paragraph 12 of the Introduction to the Principal Standards and replaces it with a new paragraph and a note. The purpose of the new paragraph is to explain that new subsection 1.5(2) of the Principal Standards, as inserted by item 14 of Schedule 1 to the Amendment Standards, applies the Principal Standards to educational early childhood service providers and the children enrolled in, or seeking enrolment in, educational early childhood services.

Repealed paragraph 12 of the Introduction to the Standards referred to Guidance Notes to the Standards that were intended to assist the reader in interpreting the Principal Standards. The Guidance Notes have been replaced by informative material made available on the Department of Education’s website. The note at the end of new paragraph 12 alerts the reader to these documents and provides a link to the Department of Education’s website where, in 2025, these documents could be freely accessed by members of the public.

Item [8] – after section 1.2 - Authority

Item 8 inserts new section 1.2A to expressly identify that the Attorney-General has made the Principal Standards under subsection 31(1) of the Act. Subsection 31(1) of the Act enables the Attorney-General to formulate disability standards in relation to any area in which it is unlawful under Part 2 of the Act for a person to discriminate against another person on the grounds of a disability of the other person, including education (section 22 of the Act) and the provision of goods, services and facilities (section 24 of the Act).

Items [9], [10] and [11] – section 1.3 - Objects

Item 9 repeals and replaces paragraph 1.3(a) of the Principal Standards, and items 10 and 11 amend paragraph 1.3(b), and the note at the end of section 1.3 of the Principal Standards, respectively. The purpose of these items is to amend the objects of the Principal Standards so that they are expressed as objects that relate to the areas of education, training and the provision of educational early childhood services.

Items [12], [13] and [14] – section 1.4 - Definitions

Item 12 inserts definitions of the terms “approved provider”, “educational early childhood service” and “educational early childhood service provider” in section 1.4 of the Principal Standards.

The term “educational early childhood service” has the meaning given by subsection 2.1A(1) of the Principal Standards. Section 2.1A is inserted by item 21 of Schedule 1 to the Amendment Standards.

The term “educational early childhood service provider” has the meaning given by subsections 2.1A(2) of the Principal Standards; that meaning includes reference to the definition of “approved provider”.

The term “approved provider” is defined, for an educational early childhood service, as the person or other entity that is the approved provider (however described) of the service under a law of the Commonwealth, a State or a Territory. The note under the definition of “approved provider” provides a non-exhaustive list of some examples of an approved provider.

Items 13 and 14 insert notes to the definition of prospective student, and the definition of student, respectively. The notes clarify that a prospective student and a student may be a person under 18 years of age.

Items [15], [16], [17], [18], [19], and [20] – section 1.5 – Who must comply with the Standards

Item 16 inserts new subsections 1.5(2), (3) and (4) before note 1 at the end of section 1.5 of the Principal Standards.

The primary purpose of the amendments to section 1.5 is to extend the application of the Principal Standards, as amended by the Amendment Standards, to apply in relation to children enrolled in or seeking admission to educational early childhood services in the same way that they apply to children who are students enrolled in or seeking admission to educational institutions.

Specifically, new subsection 1.5(2) achieves this by providing that subject to section 12 of the Act, the Principal Standards will apply to:

• educational early childhood service providers as if they were education providers who are education institutions; and
• educational early childhood services as if they were courses or programs offered by education providers; and
• children enrolled in educational early childhood services as if those children were students enrolled in educational institutions; and
• children seeking admission to, or applying for enrolment in, educational early childhood services (including where as an associate of the child seeks admission or applies for the enrolment) as if those children were prospective students of, education providers.

Paragraph 1.5(2)(a) will have the result of requiring educational early childhood service providers to comply with the Principal Standards, as amended by the Amendment Standards.

New subsection 1.5(3) provides that subject to section 12 of the Act, Part 6 of the Principal Standards apply to persons who provide a service of developing or accrediting curricula, learning frameworks or training courses to, or for use by, an educational early childhood service provider in providing educational early childhood services as if such persons were education providers. Part 6 of the Principal Standards set the standards for curriculum development, accreditation and delivery. Subsection 1.5(3) means such persons will need to comply with these standards for curriculum development, accreditation and delivery (in addition to educational early childhood service providers, who will need to comply with the Standards generally: see paragraph 1.5(2)(a)).

To avoid doubt, new subsection 1.5(4) clarifies that the Principal Standards may apply to a person under one or more of subsections 1.5(1), (2) and (3). For example, the Principal Standards, as amended by the Amendment Standards, may apply to a person in their capacity as an education provider, as an educational early childhood service provider, and as a person who provides a service of developing or accrediting curricula, learning frameworks or training courses to, or for use by an educational early childhood service provider.

Item 15 makes a minor consequential amendment to section 1.5 to accommodate the insertion of subsections 1.5(2), (3) and (4) of the Principal Standards by item 16 of Schedule 1 to the Amendment Standards.

Items 17, 18, 19 make amendments to note 1 and note 2 in section 1.5 of the Principal Standards to reflect that the Principal Standards, as amended by the Amendment Standards, apply to educational early childhood services as well as education providers.

Item 20 inserts note 4 at the end of section 1.5 of the Principal Standards to clarify that the Principal Standards apply to an educational early childhood provider regardless of the mode used to deliver the educational early childhood service.

Item [21] – after section 2.1 – Educational early childhood services and educational early childhood service providers

Item 21 inserts a new section 2.1A after section 2.1 of the Principal Standards which defines the terms “educational early childhood service” and “educational early childhood service provider”.

New subsection 2.1A(1) defines “educational early childhood service” as any of the following services:

• an approved child care service (as defined by section 194G of the A New Tax System (Family Assistance) (Administration) Act 1999).

• a service that is approved under a law of a State or a Territory to provide child care or a preschool program, and is legally required to provide children enrolled in the service with an educational program that is based on a learning framework approved by one or more of the Ministerial Council (within the meaning of the Education and Care Services National Law), the Commonwealth, a State or Territory, or an official or authority of the Commonwealth or a State or Territory.

New subsection 2.1A(2) defines the person or persons who are an “educational early childhood service provider” by reference to who is the approved provider for an educational early childhood service. Specifically, it provides that, each of the following is an educational early childhood service provider in relation to an approved provider for an early childhood service:

•  if the approved provider of the service is a legal person—the person;
•  if the approved provider of the service is a partnership—a member of the partnership;
•  in any other case—a member of the governing body of the entity that is the approved provider of the service.

This provision is necessary to identify the person that is or the persons that are an educational early childhood service provider in circumstances where the approved provider is a person such as an individual or an incorporated body, a partnership, or in any other case, an entity such as an unincorporated association.

Section 1.4 of the Principal Standards, as amended by item 12 of Schedule 1 to the Amendment Standards, defines who is an “approved provider” for an educational early childhood service: it means the person or other entity that is the approved provider (however described) of the service under a law of the Commonwealth, a State or a Territory. A non-exhaustive list of examples of an approved provider is a person or other entity that is:

• an approved provider within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth);
• an approved provider in a State or Territory (other than Western Australia) within the meaning of the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 (Vic), as that National Law is applied in that State or Territory;
• an approved provider in Western Australia within the meaning of the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law (WA) Act 2012 (WA).

The definition of “educational early childhood service provider”, read together with the definition of “educational early childhood service” and “approved provider” will mean that – for example:

• if a person, being a company, is the approved provider within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), that company is the educational early childhood service provider;
• if a person, being an individual, is the approved provider within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), that individual is the educational early childhood service provider;
• if a partnership, consisting of two members, is the approved provider within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), both members of the partnership are an educational early childhood service provider;
• if an unincorporated association, is the approved provider within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), all of the members of the governing body of that unincorporated association are an educational early childhood service provider.

The same outcome arises in relation to any other approved provider (however described) of the service under a law of the Commonwealth, a State or a Territory.

Items [22], [23], [24] – Part 4 – Standards for enrolment

Items 22 – 24 make various minor amendments to Part 4 of the Principal Standards, which are the “Standards for enrolment”.

Items 22 and 23, taken together, amend the Principal Standards to re-position the “Statement of rights” given by Part 4 so that the statement appears at the beginning of the Part 4 within new section 4.1A.

Item 24 inserts a note at the end of section 4.1, which is the section which identifies who Part 4 applies to. The note refers readers to see section 1.5 of the Principal Standards for an explanation about how the Principal Standards apply in relation to the provision of educational early childhood service. Section 1.5 of the Principal Standards, as amended by the Amendment Standards, identifies (amongst other matters) that these Standards:

• apply to educational early childhood service providers as if they were education providers who are educational institutions; and
• apply to children seeking admission to, or applying for enrolment in, educational early childhood services (including where an associate of the child seeks the admission or applies for the enrolment) as if those children were prospective students of educational institutions.

Items [25], [26] and [27] – Part 5 – Standards for participation

Items 25 – 27 make various minor amendments to Part 5 of the Principal Standards, which are the “Standards for participation”.

Item 25 and 26, taken together, amend the Principal Standards to re-position the “Statement of rights” given by Part 5 so that the statement appears at the beginning of the Part 5 within a new section 5.1A.

Item 27 inserts a note at the end of section 5.1, which is the section which identifies who Part 5 applies to. The note refers readers to see section 1.5 of the Principal Standards for an explanation about how the Principal Standards apply in relation to the provision of educational early childhood service. Section 1.5 of the Principal Standards, as amended by the Amendment Standards, identifies (amongst other matters) that these Standards:

• apply to educational early childhood service providers as if they were education providers who are educational institutions; and
• apply to children enrolled in educational early childhood services as if those children were students enrolled in educational institutions.

Items [28], [29] and [30] – Part 6 – Standards for curriculum development, accreditation and delivery

Items 28 – 30 make various minor amendments to Part 6 of the Principal Standards, which are the “Standards for curriculum development, accreditation and delivery”.

Item 28 and 29, taken together, amend the Principal Standards to re-position the “Statement of rights” given by Part 6 so that the statement appears at the beginning of the Part 6 within new section 6.1A.

Item 30 inserts a note at the end of section 6.1, which is the section which identifies who Part 6 applies to. The note refers readers to see section 1.5 of the Principal Standards for an explanation about how the Principal Standards apply in relation to the provision of educational early childhood service. Section 1.5 of the Principal Standards, as amended by the Amendment Standards, identifies (amongst other matters) that these Standards:

• apply to educational early childhood service providers as if they were education providers who are educational institutions; and
• apply to educational early childhood services as if they were courses or programs offered by education providers; and
• apply to children enrolled in educational early childhood services as if those children were students enrolled in educational institutions; and
• also apply Part 6 to persons who provide a service of developing or accrediting curricula, learning frameworks or training courses to, or for use by, an educational early childhood service provider in providing educational early childhood services as if such persons were education providers.

Items [31], [32], [33] and [34] – Part 7 – Standards for support services

Items 31 – 34 make various minor amendments to Part 7 of the Principal Standards, which are the “Standards for support services”.

Item 31 omits “student” from the heading of Part 7 so that the language of the amended heading (“Standards for support services”) is relevant to children enrolled in an educational early childhood service and students enrolled in educational institutions.

Item 32 and 33, taken together, amend the Principal Standards to re-position the “Statement of rights” given by Part 7 so that the statement appears at the beginning of the Part 7 within a new section 7.1A.

Item 34 inserts a note at the end of section 7.1, which is the section which identifies who Part 7 applies to. The note refers readers to see section 1.5 of the Principal Standards for an explanation about how the Principal Standards apply in relation to the provision of educational early childhood service. Section 1.5 of the Principal Standards, as amended by the Amendment Standards, identifies (amongst other matters) that these Standards:

• apply to children enrolled in educational early childhood services as if those children were students enrolled in educational institutions; and
• apply to educational early childhood service providers as if they were education providers who are educational institutions.

Items [35], [36] and [37] – Part 8 – Standards for harassment and victimisation

Items 35 – 37 make various minor amendments to Part 8 of the Principal Standards, which are the “Standards for harassment and victimisation”.

Item 35 and 36, taken together, amends the Principal Standards to re-position the “Statement of rights” given by Part 8 so that the statement appears at the beginning of the Part 8 within a new section 8.1A.

Item 37 inserts a note at the end of section 8.2, which is the section which identifies who Part 8 applies to. The note refers readers to see section 1.5 of the Principal Standards for an explanation about how the Principal Standards apply in relation to the provision of educational early childhood service. Section 1.5 of the Principal Standards, as amended by the Amendment Standards, provides (amongst other matters) that these Standards:

• apply to educational early childhood service providers as if they were education providers who are educational institutions; and
• apply to children enrolled in educational early childhood services as if those children were students enrolled in educational institutions.

Items [38] and [39] – Part 9 – Treatment of a person who has an associate with a disability

Items 38 – 39 make various minor amendments to Part 9 of the Principal Standards, which relates to the “Treatment of a person who has an associate with a disability”.

Item 38 makes a consequential amendment to section 9.1 to accommodate the insertion of subsection 9.1(2) of the Principal Regulations by item 39 of Schedule 1 to the Amendment Regulations.

Item 39 inserts new subsection 9.1(2) and a note at the end of the section. The purpose of this item is to provide that the Act continues to apply in relation to an action that contravenes section 24 of the Act in relation to a person who has an associate with a disability. The note at the end of section 9.1(2) explains the operation of section 24 of the Act.

Schedule 2 – Miscellaneous amendments

Disability Standards for Education 2005

Items [1], [3], [5], [8], [24], [25], [26] – various amendments

These items make minor technical amendments to various provisions of the Principal Standards to omit references to “The Standards” and substitute “These Standards”.

Item [2] – Introduction

Item 2 amends the fourth paragraph of the Introduction to the Principal Standards to omit “Human Rights and Equal Opportunity Commission” because it is no longer in existence, and substitute “Australian Human Rights Commission” so that the Introduction provides a complaint about an alleged contravention of the Principal Standards can be made to the Australian Human Rights Commission.

Item [4] – section 1.4 Definitions (note)

Item 4 amends the note to section 1.4 of the Principal Standards to clarify that the Acts Interpretation Act 1901 applies to the Principal Standards because of paragraph 13(1)(b) of the Legislation Act 2003.

Item [6] – subsection 2.2(1) relating to meaning of on the same basis

Item 6 makes a minor technical amendment to subsection 2.2(1) of the Principal Standards to omit “institution” and substitute “educational institution”. The purpose of this item is to amend the Principal Standards to clarify that the institution referred to in subsection 2.2(1) is an educational institution.

Items [7], [9], [10], [12], [16], [17], [18], [19], [20] – various amendments to use gender neutral language

These items make minor linguistic amendments to various provisions of the Principal Standards, reflecting changes in drafting practices to use gender neutral language for gender neutral provisions.

Item [11] – paragraph 4.3(c) relating to measures for compliance with standards

This item inserts “the” after “student, or” and before “associates” in paragraph 4.3(c) of the Principal Standards to clarify that reference to ‘associates’ is a reference to ‘the associates’ being the aforementioned ‘student’s associates’.

Items [13], [14], [15] –clarifying the standards in Part 6

These items make minor amendments to Part 6 of the Principal Standards to ensure the language used to express the standards contained in that part align with the matters and persons to whom Part 6 applies.

Item 13 repeals and replaces subsection 6.2(1) to include language that aligns with the language used in section 6.1 of the Principal Standards. The purpose of this item is to express the education provider’s obligation under the standard applies in relation to students with a disability who are either undertaking a course or program or who the educational provider has a reasonable expectation may undertake the course or program.

Items 14 and 15 make minor amendments to express the standard in subsections 6.2(2) of the Principal Standards as applying in relation to a student with a disability and to express the measures in 6.3 of the Principal Standards apply in relation to a student with a disability who is undertaking the course or program.

Items [21], [22], [23] – Part 8 – consequential amendments

These items make minor changes to Part 8 of the Principal Standards to remove references to section 38 of the Act, which has been repealed. Item 21 removes the reference to section 38 of the Act in the note to section 8.1 of the Principal Standards. Items 22 and 23 amend section 8.4 and the note at the end of section 8.4 of the Principal Standards to replace references to section 38 of the Act with references to section 39 of the Act. Section 39 of the Act makes it unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to harass another person who: (a) wants to acquire the goods or services; or to make use of the facilities; and (b) has a disability; in relation to the disability. As such, section 39 of the Act makes it unlawful for an educational early childhood service provider to harass a child with a disability who is seeking enrolment in an educational early childhood service.

Item [27] – section 11.1 – change in the title of the Minister responsible for review

Item 27 omits the reference to “Minister for Education, Science and Training” in section 11.1 of the Principal Standards and substitutes “Minister for Education”. This amendment reflects that the title of the Minister with responsibility for reviewing the effectiveness of the Principal Standards every five years is now the Minister for Education.

Attachment A: 2020 Review of the Disability Standards for Education 2005 Final Report

Executive summary

The Standards

The Disability Standards for Education 2005 (the Standards) are subordinate legislation to the Disability Discrimination Act 1992 (the DDA). They do not create new obligations, but seek to clarify education providers’ responsibilities under the DDA and ensure that students with disability can access and participate in education on the same basis as students without disability. It is a requirement that the Standards be reviewed every 5 years. This 2020 Review (the Review) is the third since the Standards came into effect.

The 2020 Review

The Department of Education, Skills and Employment (the department) undertook the Review throughout 2020. Consultation with national peak disability and education bodies informed the approach taken for the Review, which put the lived experiences of people with disability and their families at the centre. The intersectional factors that can affect students with disability were acknowledged. The Review had a focus on the experiences of Aboriginal and Torres Strait Islander students and their families. It was also undertaken during the COVID-19 pandemic.

Participants in the Review engaged via a dedicated online Consultation Hub in various formats, with activities such as webinars, focus groups, and questionnaires. All consultation activities were designed to be user-friendly and accessible. In addition to the public consultations, the Review met with key national agencies, regulators, and sector representatives, and was guided by a reference group of state and territory officials across all education sectors. A Young People’s Advisory Group was formed to hear directly from young people with disability.

Review findings and reform directions

The Review identified 2 areas within the Standards that require amendment to support “the effectiveness of the Standards in achieving their objects”; first, clarification of expectations for consultation, issues resolution and complaints handing processes, and, second, inclusion of early childhood education and care (ECEC) within the Standards. However, most findings relate to awareness, understanding and implementation of the Standards.

Recommendations reflect the 3 reform directions emerging from consultations which apply across all education sectors (preschool/kindergarten, school, vocational education and training, and higher education), and one specific to the ECEC sector:

      Empowering and supporting students with disability and their families

      Strengthening the knowledge and capability of educators and providers

      Embedding accountability for the Standards throughout the education system

      Building awareness and capability in the ECEC sector.

The schooling sector features most prominently throughout the recommendations, reflecting the compulsory nature of this sector and the length of time students with disability engage with this part of the education system. The ways in which the reform directions are addressed across education sectors vary, reflecting the different ways each sector operates.

Recommendations reflect the distribution of responsibilities for delivery of education

The Commonwealth has responsibility for recommendations related to the development of awareness-raising material, amendments to the Standards and appropriate use of its levers (e.g. school funding) to support implementation of the Standards. There is joint Commonwealth-state responsibility for recommendations related to national policy and regulatory architecture, which is largely jointly owned. States, territories and school education authorities are asked to take forward a small number of recommendations, mostly schooling-related.

Empowering and supporting students with disability and their families

The Review heard that as students with disability and their parents and carers seek to find their way through the education system, the onus rests on them to understand the system and advocate for reasonable adjustments rather than this being proactively offered by education providers. Additionally, the power imbalance between the education provider and the student, parents and carers made people reluctant to raise issues for fear of negative consequences.

The Review aims to drive improved navigation of the education system for students with disability and their families by proposing accessible information products on the Standards co-designed by people with disability; amendments to the Standards to include principles for consultation, issues resolution and complaints handling processes for students with disability; and options to transfer information about disability and reasonable adjustments when a student makes transitions within the education system, commencing with the school sector.

Strengthening the knowledge and capability of educators and providers

The Review heard that positive educational experiences for students with disability feature motivated and capable individual educators and school leaders, however positive experiences were only reported by a small number of Review participants. The Review heard that many educators are unaware of their obligations under the Standards or lack the resources to implement them, and those who are aware struggle to find guidance and clarification on how to implement them. Teaching and learning are enhanced when educators are trained in the Standards, know how to implement them, and are supported by employers, systems and communities. Additionally, educator cultural awareness was seen as vitally important for Aboriginal and Torres Strait Islander students.

Review recommendations seek to strengthen information, resources and training for educators and education providers.

Embedding accountability for the Standards throughout the education system

The Review heard that accountability for the implementation of the Standards is lacking and does not drive changes to the education system. Participants felt that the current complaints-based mechanism used for compliance under the DDA has the effect of redressing individual situations but does not readily support or drive systemic change. Many organisations called for the mandatory collection and release of information on providers’ compliance with the Standards, noting the absence of such data contributes to a lack of public and private scrutiny. A common view was that there are few consequences when providers are non-compliant with the Standards.

Review recommendations seek national alignment of education policies and regulations to the Standards. This will streamline arrangements for the education sector by incorporating existing legal obligations under the DDA/Standards into relevant national and state standards and frameworks, which will have the effect of ensuring all national and state regulators of education have regard to the Standards when undertaking relevant regulatory activity. To support further transparency, the Review recommends states and territories commission development of nationally consistent principles and practices on collection and public reporting of data on school students with disability. It further recommends education authorities publish accessible and user-friendly information for parents on their websites about the services and supports their schools provide for students with disability. It is proposed this be a condition of education authorities receiving Commonwealth school funding.

The COVID-19 pandemic amplified existing challenges

The experiences of families of students with disability were mixed during the COVID-19 pandemic. Overall, families reported a loss of support and connection which adversely impacted on their children’s educational progress and connection with their educational providers.

Early childhood education and care – a key starting point for change

While the Standards do not apply to ‘child-care providers’, these providers are subject to the DDA. A separate stream of consultations was undertaken to consider awareness, understanding and application of the DDA within the ECEC sector. The Review found a need for better information for parents and carers, and more resources for educators to build awareness and understanding of the DDA in an ECEC context.

The Review heard strong support for ensuring national alignment of ECEC policies and regulations to the DDA. This body of work would set a strong foundation of awareness and capability ahead of proposed consultations in 2023 on draft amendments to the Standards in relation to the ECEC sector.

Experiences of Aboriginal and Torres Strait Islander students with disability

The Review consultations included a focus on the experiences of Aboriginal and Torres Strait Islander students with disability. The Review heard that these students faced additional challenges and experienced what is described as ‘double discrimination’, leading to poorer experiences and outcomes. Consideration of Aboriginal and Torres Strait Islander students with disability (and all groups experiencing intersectional disadvantage) should be embedded in the design of services and supports for students with disability and will be factored into implementation of all Review recommendations.

Implementing the Review recommendations

While the Australian Government has responsibility for undertaking the Review of the Standards, responsibility for the delivery of many aspects of education – and therefore for implementation of the Standards in practice – rests with states and territories. A joint effort will be required to implement the Review recommendations. The Australian Government will also work closely with educators and state and territory education authorities in developing approaches to implementation of recommendations.

Consultation and co-design with people with disability, including Aboriginal and Torres Strait Islander people with disability, will inform implementation of the Review recommendations. Educators, education authorities and education providers will also be consulted on how best to implement the recommendations.

The Australian Government could commit to public annual reporting of implementation progress against each of the Review recommendations to increase transparency and accountability.

Recommendations

Recommendation 1

That the Australian Government Minister for Education develop information products on the Standards (“Know your rights”) for students, parents and carers that are co-designed with people with disability. The products will be provided to relevant Australian Government agencies and states and territories to promote within their respective areas of responsibility and provide at relevant points in a student’s life.

Recommendation 2

That the Australian Government amend the Standards to include principles on consultation, issues resolution and complaints handling processes.

Recommendation 3

That the Australian Government Minister for Education and the Australian Government Minister for Skills seek agreement from education and skills ministers to work together to consider options to support student transitions by transferring relevant information about a student’s disability between education providers. Work should focus on student transitions within the school sector in the first instance, with a view to supporting transitions between education sectors.

Recommendation 4

That the Australian Government Minister for Education, in consultation with people with disability:

         Review and expand the current Exemplars of Practice available on the Australian Government Department of Education, Skills and Employment website

         Develop information (“Know your responsibilities”) for education providers and bodies involved in the development and accreditation of curriculum.

The products will be provided to relevant Australian Government agencies and states and territories to promote within their area of responsibility to ensure all staff understand their obligations.

Recommendation 5

That the Australian Government Minister for Education write to education ministers (or school education authorities where relevant) encouraging them to:

         Ensure all school teachers and leaders have appropriate training on the Standards and supporting students with disability with consideration given to how this training relates to teacher registration processes. States and territories may also wish to consider a nationally consistent approach

         Ensure induction processes for graduate teachers in both government and non-government schools provide an appropriate focus on the Standards and supporting students with disability.

Recommendation 6

That the Australian Government Minister for Education ask the Department of Education, Skills and Employment Equity in Higher Education Panel to examine ways to embed the Standards in higher education institution policies and practices across the student lifecycle (pre-access, access, participation, attainment, and transition out) at both an undergraduate and postgraduate level, as well as in workforce capability policies, as part of its development of the Student Equity in Higher Education Roadmap.

Recommendation 7

That the Australian Government Minister for Education and the Australian Government Minister for Skills seek agreement from education and skills ministers to work together to ensure national alignment of education policies and regulations to the Standards. This alignment will streamline arrangements for the education sector by incorporating existing legal obligations under the DDA/Standards into relevant national and state standards and frameworks, which will have the effect of ensuring all national and state regulators of education have regard to the Standards when undertaking relevant regulatory activity.

Consideration should be given to amending relevant national and state standards and frameworks and/or their supporting policy and guidance material to support achievement of the objectives of the Standards. Relevant standards and frameworks could include:

      the Australian Professional Standards for Teachers

      the Australian Professional Standard for Principals and the Leadership Profiles

      the Australian Curriculum

      Standards and procedures for accreditation of initial teacher education programs in Australia

      Standards and procedures for registration of schools

      Framework for Teacher Registration in Australia

      Standards for Registered Training Organisations

      Standards for VET Accredited Courses

      Standards for VET Training Packages

      Standards for VET Regulators

      Higher Education Standards Framework.

Recommendation 8

That the Australian Government Minister for Skills work together with skills ministers through the Heads of Agreement for Skills Reform to identify opportunities to strengthen delivery of vocational education and training for students with disability.

Recommendation 9

That the Australian Government Minister for Education require all education authorities to make information publicly available on their website about the services and supports their schools provide for students with disability as a condition of Commonwealth school funding from 2022. The information should be easily accessible and understood by parents and carers.

Recommendation 10

That the Australian Government Minister for Education seek agreement from education ministers to commission development of nationally consistent principles and practices on collection and public reporting of data for school students with disability to support assessment of the extent to which they are accessing and participating in education on the same basis as their peers without disability.

Recommendation 11

That the Australian Government Minister for Education write to:

         Education ministers and state auditors-general to recommend inclusion of at least one performance audit related to implementation of the Standards in the auditor-general’s work programs by 2024 (in order to inform the 2025 Review of the Standards). This could be through consideration of the implementation of the Standards where relevant to an aspect of an existing planned performance audit

and

         Relevant Australian Government ministers to ask them to ensure any arrangements within their portfolio for education or training delivery or course curriculum development and accreditation have appropriate regard to the requirements of the Standards.

Recommendation 12

That the Australian Government Minister for Education build early childhood education and care (ECEC) sector awareness and capability regarding the Disability Discrimination Act 1992 (DDA) by developing information products for parents and carers. The products will be provided to relevant Australian Government agencies, the Australian Children’s Education and Care Quality Authority, and states and territories to promote within their respective areas of responsibility.

By 2023, the Australian Government will prepare draft amendments to the Standards to incorporate ECEC for sector consultation.

Recommendation 13

That the Australian Government Minister for Education seek agreement from education ministers to build early childhood education and care (ECEC) sector awareness and capability regarding the Disability Discrimination Act 1992 (DDA) by:

         Asking the Australian Children’s Education and Care Quality Authority to develop and implement an awareness campaign and resources for ECEC providers

         Ensuring national alignment of early childhood education and care policies and regulations to the DDA

        This alignment will streamline arrangements for the ECEC sector by incorporating existing legal obligations under the DDA into relevant national and state standards and frameworks. It will have the effect of ensuring state regulators of ECEC have regard to the DDA when undertaking relevant regulatory activity

        Consideration should be given to amending relevant national and state standards and frameworks and/or their supporting policy and guidance material to support achievement of the objectives of the Standards. Relevant standards and frameworks could include the National Quality Framework.

1. Overview of the Review

1.1 Introduction

Education has the power to transform lives. It supports all people to realise their potential by providing skills they need to participate in the economy and in society, and contributing to every aspect of their wellbeing[1].

The Alice Springs (Mparntwe) Education Declaration, agreed by all education ministers in December 2019, sets out a vision for Australia of a world class education system that encourages and supports every student to be the very best they can be, no matter where they live or what kind of learning challenges they may face.

This vision includes students with disability, who are a part of every aspect of education.

In the 2018 ABS Survey of Disability, Ageing and Carers (SDAC), 3.7 per cent of 0-4 year olds, 9.6 per cent of 5-14 year olds and 9.3 per cent of 15-24 year olds were reported as having a disability. Overall in 2018, people with disability made up 17.7 per cent of the Australian population, which equates to more than 4.3 million people.

Further, in 2019, nearly 1 in 5 (19.9 per cent) school students across Australia received an adjustment due to disability according to the Nationally Consistent Collection of Data on School Students with Disability (NCCD).

1.2 The Disability Standards for Education 2005

The Disability Standards for Education 2005 (the Standards) came into effect on 18 August 2005. They seek to ensure that students with disability can access and participate in education on the same basis as students without disability.

The Standards are subordinate legislation to the Disability Discrimination Act 1992 (the DDA); this means they sit under the Act. Under the DDA, it is unlawful to discriminate against a person because of their disability. The DDA protects people with disability against discrimination in many areas of public life, including education.

Under Part 2 Division 2 of the DDA, the Attorney-General may make Disability Standards to specify rights and responsibilities about equal access and opportunity for people with a disability in more detail than the DDA itself provides.

The following Standards have been made under the DDA:

      Disability Standards for Accessible Public Transport 2002

      Disability Standards for Education 2005

      Disability (Access to Premises – Buildings) Standards 2010.

If a person acts in accordance with the Standards, they comply with the DDA. An education provider must comply with the Standards or it will be acting unlawfully.

1.2.1 Purpose of the Disability Standards for Education 2005

The Standards do not create new obligations. Their purpose is to clarify the education provisions of the DDA. They are intended to make it easier to understand the rights and obligations under the DDA.

They were developed in response to calls from education providers seeking a timelier and more accessible alternative to the clarification of the rights of people with disability offered by decisions in cases determined through the legal system. Compliance with the Standards is a legal defence to a claim under the DDA; other guidance material and supporting information does not have the same legal standing.

The Standards cover enrolment, participation, curriculum (its development, accreditation and delivery), student support services, and the elimination of harassment and victimisation.

Each part of the Standards sets out the rights of students with disability (including prospective students) to help people understand what is fair and reasonable under the Standards, and the legal obligations or responsibilities of education providers.

Education providers covered by the Standards include preschools (including kindergartens), government and private schools, Technical and Further Education (TAFE) providers and other vocational education and training (VET) providers, adult education providers and higher education institutions, including universities.

1.2.2 Obligations for reasonable adjustment

The Standards provide detail about an education provider’s obligation to make reasonable adjustments to assist a student with disability to participate in education on the same basis as students without disability. There is no obligation to make an unreasonable adjustment.

Education providers must consult with students and their family members or carers about reasonable adjustments. They should also take into account the interests of all involved, such as staff and other students, and ensure the integrity of the course or education program and its assessment is maintained.

The 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.

1.2.3 Making a complaint

If a person believes an education provider is not complying with the Standards, they have the right to make a complaint to the Australian Human Rights Commission (AHRC) about disability discrimination. The AHRC will try to resolve the situation through a conciliation process.

If the AHRC conciliation is unsuccessful, an aggrieved person may commence legal proceedings in the Federal Court of Australia or the Federal Circuit Court.

1.2.4 Requirement to review the Standards

The Standards specify that the Australian Government Minister for Education, in consultation with the Attorney-General, must conduct reviews of the Standards at intervals of not more than 5 years, to review "the effectiveness of these Standards in achieving their objects, including a consideration of whether any amendments are desirable".

1.3 The 2010 and 2015 Reviews

The 2010 Review found the Standards were a good framework for promoting access and participation in education but there were issues identified that weakened the effectiveness of the Standards. The 2015 Review found while there had been significant improvement in accessibility and use of the Standards since 2010, further effort and support tools were required.

Broad themes identified in the 2015 Review of the Standards include:

      Awareness raising – more could be done to ensure that the Standards had a user focus, were promoted widely, were accessible to all and were well understood

      Clarity, understanding and capability – varying interpretation and application of terms such as ‘reasonable adjustment’ and ‘unjustifiable hardship’, and the need for greater support and guidance on best practice for educators

      Complaints – the complaints mechanisms for the Standards, including negotiation and arbitration processes can be inaccessible, time consuming and hard for students and their families and carers

      Accountability and compliance – reliance on complaints mechanisms to drive compliance with the Standards is ineffective and could be complemented with more proactive mechanisms.

Appendix A provides a summary of actions addressing 2015 Review recommendations.

The disability community has expressed the view that the 2010 and 2015 Reviews have not led to deep and systemic change in the education of people with disability. Despite significant national collaborative effort in the education sector, particularly around the implementation of the NCCD, many of the areas for improvement identified in 2010 and 2015 remain a focus in the 2020 Review (the Review).

1.4 Approach taken to the 2020 Review

1.4.1 Terms of reference for the 2020 Review

In considering the effectiveness of the Standards, the Review considered the following:

1.     Are the rights, obligations and measures of compliance set out in the Standards (and its Guidance Notes) clear and appropriate?
2.     Do students, families, educators, education providers and policy makers know about, understand, apply and comply with the rights, obligations and measures of compliance in the Standards?
3.     In the 15 years since the Standards were developed, have the Standards contributed towards students with disability being able to access education and training opportunities on the same basis as students without disability?

Consultation for the Review included a focus on the impact of the Standards on the experiences of Aboriginal and Torres Strait Islander students with disability.

In formulating recommendations, the Review focused on opportunities for national collaborative action between jurisdictions and agencies, including action to strengthen the knowledge and capabilities of teachers and educators, and whether any amendments to the Standards should be made. The ways in which reform directions are addressed across all education sectors varies, reflecting the different ways each sector operates.

1.4.2 Conduct of the Review

In February 2020, the Department of Education, Skills and Employment (the department) commenced the third review of the Standards. The Review occurred in 3 phases.

The first phase of the Review involved one-on-one consultations with approximately 20 national peak disability and education bodies from April to June 2020, as well as engagement with the Disability Discrimination Commissioner, Dr Ben Gauntlett. This initial consultation informed the Review terms of reference and the approach to public consultation during COVID-19 pandemic restrictions.

Peak bodies emphasised the importance of centring the lived experiences of the people whose lives are impacted by the Standards and, particularly, seeking out the voices of young people. Early consultation also highlighted the need to recognise sex, race, gender identity, cultural background and other ‘intersectional’ factors that can compound disadvantage and affect access to education for students with disability. There was a call for explicit consultation strategies to ensure the Review heard the voices of Aboriginal and Torres Strait Islander students, students from culturally and linguistically diverse (CALD) backgrounds, and students in regional and remote areas.

The second phase of the Review was the public consultation process that took place from 16 July to 25 September 2020. This was a largely online process centred around a Consultation Hub website. It was designed to be user-friendly and allow people the choice to engage in a range of ways. Participation options included webinars, focus groups, online discussion boards, questionnaires, one-on-one interviews and making a submission.

In order to hear directly from young people with disability, a Young People’s Advisory Group was established. This group met twice: first, to discuss their experiences in education and, second, to discuss the findings from Review consultations. Discussions were facilitated by Dr Gauntlett.

Consultation activity included a focus on the experience of Aboriginal and Torres Strait Islander students with disability. Review consultations were designed to hear the voices of this cohort and their families directly. Questions about the experiences of this cohort were embedded in all consultation activities, the discussion papers and the questionnaire. Face-to-face community visits with students with disability, their parents, carers, families and educators were facilitated by locally engaged Aboriginal and Torres Strait Islander organisations. Their stories were important to provide the lived experience of families and children with disability from Aboriginal and Torres Strait Islander backgrounds.

Concurrent to public consultation, the Review team met individually with around 25 national agencies, regulators, and sector representatives. There was also specific consultation with peak bodies representing people with disability and with Indigenous Education Consultative Bodies.

States’ and territories’ key roles in the delivery of education meant their participation in the Review alongside the department was critical to an effective Review process and recommendations which are supported through national collaborative action. A reference group of state and territory officials across early childhood education and care, schooling, VET and higher education was formed to guide the Review process.

The department recognises the contributions which were received from a large number of organisations and individuals over the course of the Review. The department particularly thanks and acknowledges those students with disability and their families who shared their personal experiences as part of their contributions.

Further information on the Review methodology, including the approach to consultation, is provided at Appendix B and Appendix C.

The Review has also been informed by other important work underway including the Royal Commission into the Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission), and the development of a new 10-year National Disability Strategy.

2. Consultation perspectives and outcomes

This chapter of the report outlines what the Review heard from people and organisations through consultations and the related recommendations for action. The sections below explore different aspects of how people experience the education system for children and students with disability and the 4 resulting reform directions:

      Empowering and supporting students with disability and their families

      Strengthening the knowledge and capability of educators and providers

      Embedding accountability for the Standards throughout the education system

      Building awareness and capability in the early childhood education and care (ECEC) sector.

The term educators refers to all professionals whose work involves the delivery of education. This includes early childhood educators, primary and secondary school teachers, higher education staff including lecturers and tutors, and vocational educators and trainers, as well as other front-line education professionals such as teacher aides or assistants, specialist teachers, and educational psychologists.

Providers refers to the organisations that employ educators, including ECEC services, preschools and kindergartens, primary and secondary schools, universities and registered training organisations. It may also refer to organisations who operate several educational centres.

Communities refers to the communities around environments where education is delivered. This includes, for example, fellow students, their families, therapists, and related services such as school bus drivers and operators.

2.1 Empowering and supporting students with disability and their families

This section on system navigation is about how students, parents and carers find their pathway through the education system and how the Standards support this. Feedback received through consultations reveals that, too often, it is hard for a student with disability in Australia to access and fully participate in education and learning and there remain significant areas for improvement in achieving the objects of the Standards. Based on what the Review heard, there is a strong sense of frustration and exclusion among parents, carers and students.

While there were fewer positive stories heard through the Review, the common theme underpinning successful outcomes is the importance of proactive, supportive and early engagement by education providers, strong communication between providers and families, relationships built on respect, and the value placed on the individual student’s ability and viewpoint.

2.1.1 The onus is usually on students, parents and carers to advocate for their rights

Review contributors indicated the Standards are most often given effect through the advocacy efforts and determination of students and, even more so, their parents and carers, rather than a proactive offering by the education provider. As students with disability seek to access and participate in education, the Review heard the onus rests in practice on students, parents and carers to understand the system and advocate for reasonable adjustments. Access to rights often hinges on the ability of students, parents and carers to advocate effectively.

Education institutions are often reactive in responding to the needs of students with disability. Participants argued that the onus should be on the educational institution to be accessible and not “placing pressure on the student to fit into the existing system” (Participant, tertiary education webinar). The experience of students and families is that often reasonable adjustments are provided only in response to a difficult situation or grievance, rather than proactively planned.

Parents and carers find it burdensome and difficult to advocate to schools for reasonable adjustments. Review participants reported that many schools are defensive and do not acknowledge that they are not complying with the Standards or providing the required support. Parents reported referencing the Standards only as a ‘last resort’ in a conflict situation.

Families described the exhaustion of having to constantly push for support and engagement:

“I am worn to the ground. I am a strong, middle class and educated person, but I am totally defeated by this system.” (Parent of secondary school students with intellectual disability, Inclusion Australia submission)

Where support is provided, students, parents and carers also noted they were often excluded from decisions being made about the student’s education, including planning and making reasonable adjustments. Many participants felt their knowledge and expertise is not valued, and they are treated as though they are interfering or do not properly understand their child or the situation.

In the tertiary sector (vocational education and training (VET) and higher education) the responsibility for advocating shifts from parents and carers to students, which can be particularly difficult if students struggle with paperwork, or they are in a position where parents or carers cannot legally intervene.

The Review heard that intersectional disadvantage can affect the experience of students with disability and their parents and carers. Intersectionality refers to the ways in which different aspects of a person’s identity can expose them to overlapping forms of discrimination and marginalisation. People who experience disadvantage in other ways have compounding challenges in making their way in the education system. For example, parents, carers and students who are not fluent English speakers may struggle to understand their rights and negotiate reasonable adjustments, or students living in a regional or remote area may have trouble accessing the support they need. The Review also heard that parents and carers may themselves have a disability that impacts their ability to advocate on behalf of their child.

The Review heard that many Aboriginal and Torres Strait Islander students with disability experience intersectional disadvantage. For example, in addition to a student experiencing discrimination due to their disability, they may also be discriminated against due to poverty, cultural background, or indigeneity:

“Double discrimination is often experienced by Aboriginal and Torres Strait Islander people; discrimination based on their disability and on their ethnicity and/or culture. A 2019 study found that 76.5% of respondents reported having experienced discrimination on the basis of their disability and, of the 3% of those surveyed who identified as Aboriginal and Torres Strait Islander people, 60% identified they were discriminated against on the basis of their ethnicity and/or culture.” (National Aboriginal Community Controlled Health Organisations submission)

The experiences of Aboriginal and Torres Strait Islander students with disability and their families are specifically considered at 2.1.4.

2.1.2 Transitions are particularly difficult for students to navigate

The Review heard that transitions can be very hard to navigate for students with disability within and between providers, sectors and jurisdictions, and even simply moving between year levels within a school. Students and their parents and carers often need to ‘start again’ with engaging the educator about their support needs in each new classroom or educational setting:

“Transitions can be micro activity shifts within a classroom, physical moves between classrooms or life stage shifts from year to year and within the school community. Poor support for children in transitions can put their entire educational journey at risk because the child’s reaction can be to lose control of their emotional state and suffer social shame before their peers. It is this emotional and social dimension of transitions that causes the greatest worry for parents and children because of the harm to identity development and the trauma that can be caused by the reaction of others to anxiety behaviours.” (Developmental Disability WA submission)

Parents and carers report issues with communication and passing on of information among educators and learning support staff about disability and reasonable adjustments when students move schools, move classes within schools, or move up a year level. Transitions within compulsory schooling are often reliant on strong parent and carer advocacy making new teachers aware of the support needs of students.

When a student moves from schooling to VET or higher education, the advocacy role changes from parents and carers to the student, which can compound transitional issues. Further, people noted there was very little alignment between the school and tertiary sectors, many ‘gaps and barriers’ to transition and the need for greater collaboration and information sharing processes.

To address some of these gaps and barriers, the Review heard that strengthened relationships between education providers could make transitioning between the sectors easier. For example, transition to post school options could start earlier with visits to tertiary educational settings ahead of time and early trials of VET courses and environments.

Student transitions could also be supported through transfer of relevant information about a student’s disability between education providers. Current joint Commonwealth-state work underway by officials to look at improvements to the mechanism for transferring student schooling information interstate could be leveraged as an opportunity to transfer information about a student’s educational adjustments between schools, with a view to facilitating information flow between education sectors in the longer term.

2.1.3 People are reluctant to complain to an education provider

People expressed reluctance to speak up or make a complaint due to concerns of being seen as burdensome by the education provider, fear of ongoing unfavourable treatment or a belief that speaking up would cause further deterioration of the relationship, thus disadvantaging the student. The power imbalance between students, parents and carers and the educator or provider was frequently cited as a reason why successfully speaking up was hard, particularly for those facing intersectional disadvantage.

Parents, carers and students felt that issues raised with schools may be ignored, or that actions following complaints could be temporary. One parent expressed their experience this way:

“I am not a partner in my child’s education. The school withholds information from me because I make complaints about the things they have done. The school does not want to make any changes.” (Parent, parents and carers focus group)

The Review heard that it is harder for people from culturally and linguistically diverse (CALD) backgrounds and Aboriginal and Torres Strait Islander peoples to advocate for their rights and access complaints processes:

“Our school community has poor literacy and low levels of education in general, as well as a high proportion of families who speak English as an Additional Language. As a result, families often place total trust in the school and do not feel that they are able to advise the school on their child's needs or question what has been put in place. Many families also have generational learning difficulties and so parents may not be able to articulate or explain what they feel their child needs.” (Parent/carer, questionnaire)

Escalating the matter to a formal complaints system such as the Australian Human Rights Commission (AHRC) is even more resource intensive and intimidating for students and parents and carers given the cost involved, length of time to pursue a complaint and the need for advocacy or representation:

“Given the way I feel that courts have eroded the tests in the [DDA], the length of time involved, and the remedies … I feel a very heavy heart about it because I think it’s very important to approach education from a rights-based perspective, but I do feel that as far as parents seeking to enforce the Standards and the Act, it is a very difficult road for anyone who does so.” (Peak body, peaks roundtable)

2.1.4 Aboriginal and Torres Strait Islander students with disability face additional challenges

The Review heard that in many Aboriginal and Torres Strait Islander cultures, there was no specific word to describe ‘disability’. This is supported in the literature on Aboriginal and Torres Strait Islander people with disability[2]. Aboriginal and Torres Strait Islander cultures are inclusive of all young people and tend to inherently adjust for differences. For cultural and historical reasons, many Aboriginal and Torres Strait Islander people with disability do not identify as being disabled or as a person with disability[3]. This could result in the families of young children being made aware of a single or multiple disability diagnosis for the first time when attending child care or another facility:

“Often we are the ones that broach the conversation of: we’ve noticed these traits or these are what we’ve observed, we’re not the specialists, we can’t make any diagnosis, but it might be good to refer your child to the speech pathologist and to the occupational therapists and to the nurse and perhaps then down the track to a paediatrician.” (Educator, Aboriginal and Torres Strait Islander educators focus group)

A lack of trust of medical or education authorities can also contribute to late awareness of disability and of the additional supports that children with disability are entitled to, and may require, to be able to participate in educational services on the same basis as children without disability.

It was suggested that this puts children with disability behind their peers from the outset of their education journey, resulting in under-reporting and poorer long-term outcomes for these students:

“When I see something not working, I wish for more language and culture, it’s a white system, black kids can’t see themselves and kids with disability troubles, get lost, just sitting.” (Parent, face-to-face consultations)

The Review found that Aboriginal and Torres Strait Islander students, particularly those living in regional and remote locations, faced transport, logistical and cultural barriers to their access and participation. While transport services are not provided for under these Standards, it was clear that access to education was problematic for many and was essential to ensuring that Aboriginal and Torres Strait Islander students with disability attended school and other education services.

Participants and submissions raised concerns about the lack of access to a suitable education facility for some Aboriginal and Torres Strait Islander students with disability. This can lead to students being taken off country because there are no services set up to teach them:

“My son had to go and live in [a regional centre] leaving our family home in [a remote town] because at high school here he was watching Disney movies for babies and he is 15.” (Parent, face-to-face consultation)

In the higher education sector, one submission suggested that most universities do not provide specific support services for Aboriginal and Torres Strait Islander students with disability. Where support services or deliberate practices were put in place, including for transitions and assistance with mental health considerations, the Review heard that relationships with, and outcomes for, these students were significantly improved.

2.1.5 The COVID-19 pandemic significantly affected school students with disability

COVID-19 pandemic related input to the Review was heavily weighted to the schooling sector, suggesting that school students with disability and their parents and carers were most adversely affected by communities going into lockdown. Despite efforts from education providers, input to the Review indicated the COVID-19 pandemic amplified the daily challenges confronting students with disability to access and participate in education on the same basis as students without disability.

2.1.5.1 Isolation and lack of support were key themes

A peak disability advocacy group, in the peaks webinar, noted that during the COVID-19 pandemic, when students with disability were unable to attend their educational institutions, they were more socially isolated from their classmates as a result of factors such as reductions in support staff, limited contact with education providers and peer exclusion.

The loss of routine and structure, previously provided by educational institutions, was keenly felt by many respondents. Students who had access to support workers (e.g. teacher aides) prior to the COVID-19 pandemic lost that close, skilled support. The impact on families was summed up in a comment made on an educators online discussion board canvassing some of the challenges faced by many parents and carers during lockdown:

“They did not have the support at home like their child did at school. So a lot of them were juggling working from home, other siblings and trying to support their child with a disability to attend to their school work. In a lot of cases that just wasn’t working. Some did not have the know how to access, or have the technology at home to engage in, online learning.” (Educator, educators online discussion board).

A common theme was that feelings of disconnection were further compounded by insufficient communication between schools and parents and carers. Parents and carers often reported that they had limited contact with the school during the COVID-19 pandemic, despite requests for additional contact for their child. A number of barriers to contact were reported, including the school’s inability or unwillingness to use videoconferencing technology, such as Zoom (Parents and carers focus group).

Where a student with disability remained at home post lock-down (i.e. after other students returned to school), some parents and carers noted that the risk of isolation was exacerbated for them because of reduced information flow from the school and the COVID-19 pandemic safety restrictions on school grounds limiting their access to the school. This is consistent with information provided to the Disability Royal Commission, which also heard issues around the isolation of people with a disability during the COVID-19 pandemic, especially people with disabilities that affect communication. It also heard there was insufficient communication with people with disability.

Respondents observed that educators need to recognise and support students’ emotional and social interaction needs during major events. This includes ensuring that students with disability ‘feel comfortable and safe’ and that impacts to routine and structure are mitigated.

Mental health challenges have been exacerbated by the COVID-19 pandemic, particularly for people with disability, further compounding the risk of disconnection or isolation. The apparent lack of acknowledgement by some education providers of the unique and diverse needs of students with disability only served to increase the anxiety of those students and their families. Acknowledging and addressing the multiple traumas suffered by some families is important, as noted here:

“Students also need to be supported in coping with trauma if they have been directly impacted by an event like bushfire, floods, etc. Appropriate counselling or psychological support is critical … A simple answer through COVID would have been to have students turn on their Zoom videos so they could see each other.” (Participant, schooling webinar)

2.1.5.2 The impact of disadvantage was exacerbated by the COVID-19 pandemic

The education experiences of students with disability from low socioeconomic status (SES) families during the COVID-19 pandemic appear to have been compounded by several factors, including:

      Poor income security (casual employment, employment in areas hard hit by shutdowns)

      Inability to connect with appropriate support services

      Trust issues with authority

      Poor access to technology (both hardware and connectivity – further exacerbated for many rural and remote families), where a large family may have to share one computer

      Reliability of home equipment and access to skilled support services to resolve issues

      Language barriers amplified by an inability to access interpreter services in person.

One disability advocacy organisation noted that some students with disability from refugee backgrounds were left at home without support from school or access to services and parents and carers were not given enough support to implement the instructions sent home to them.

2.1.5.3 Some positive experiences were generated by the COVID-19 pandemic

Some families, on the other hand, found the changed circumstances of the COVID-19 pandemic brought positive experiences for their children with disability, and expressed satisfaction with adjustments put in place during this time. For example, some experienced improved access to online learning platforms, and suggested greater use of technology and alternative learning arrangements should be made available permanently.

Some students benefited from the opportunity to engage in education in quieter environments and at their own pace. The move from the busy classroom environment of school, with all its noise and distraction, to the quiet, calming environment of home, provided a catalyst for improved mental health. One disability advocacy organisation observed that some schools worked well with families during the COVID-19 pandemic, sending out packs and games and even food packages for refugee families, in recognition of how difficult this period would be (Telephone interviews).

An organisation in the higher education sector suggested that the COVID-19 pandemic improved educators’ awareness of barriers to remote learning and drove them to consider the needs of students with disability more seriously, including the application of reasonable adjustments.

In the ECEC sector, respondents listed a number of examples where preschools had responded to the challenge of staying connected to their children with disability during the COVID-19 pandemic. These included:

      Preschools running Zoom sessions regularly and sending out “lots of activity packs” (Participant, online discussion board for teachers and education support workers)

      Staff collaborating to write learning plans together to meet the needs of all children

      Provision of videos of staff reading stories, running online tutorials demonstrating how families could do activities together at home (such as playdough making)

      Practicing online learning with students before lockdown.

2.1.6 Better awareness and understanding of the Standards would help

Students with disability and their families seek to know and understand their rights under the Standards so they can advocate for them. While stakeholders report general awareness of the Standards, a greater depth of knowledge would help to ensure students with disability are able to genuinely access and participate in education.

Families and students involved in the Review reported they had moderate knowledge of the Standards themselves, however they considered the general knowledge of the Standards by other parents and carers of students with disability to be very low. Participants noted this general low awareness may lead to misunderstanding of the rights and obligations within the Standards by students with disability and their parents and carers. This view was supported by separate surveys undertaken by several peak bodies. One student reported:

“I know they give me rights but don’t know how I would work with the school to make sure that they are adhered to” (Young people focus group, Children and Young People with Disability Australia).

The Review found that the Standards were not well known or understood by Aboriginal and Torres Strait Islander students with disability and their families. This impacts on their ability to access their rights under the Standards.

2.1.6.1 User-friendly, co-designed information is sought

People felt that the Standards themselves were not well understood; being legislation, they are ‘dry’ and not user friendly. Further, concepts in the Standards such as ‘reasonable adjustments’, ‘unjustifiable hardship’, ‘on the same basis’, and ‘consultation’ are not sufficiently defined. People called for more practical examples of the types of support and adjustments that could be made available and greater clarity on the range of adjustments which could be provided. People called for information on the intersection of the Standards with services provided under the National Disability Insurance Scheme (NDIS) to address confusion about roles and responsibilities.

The development of targeted, accessible, visual and culturally appropriate information about the Standards, explaining individuals’ rights and the obligations of providers, was strongly supported. Students, parents and carers said they need supporting information about the Standards that is accessible and easy to read. These more accessible products could take many different forms:

      Easy Read, digital formats, large print, and Braille

      Translations of supporting information in community languages, including Indigenous languages

      For Aboriginal and Torres Strait Islander families, culturally appropriate material, which enables students to see themselves and their cultures represented and considers a range of formats such as video, Indigenous media (including, for example, the Koori Mail) and on social media platforms. Put by one educator, “the Standards need to be explained with lots of visuals” (Aboriginal and Torres Strait Islander educator interviews).

Participants emphasised that these information products must be co-designed with the groups they will target; people with disability, peak bodies, relevant cultural groups and advocates. The Australian Government notes the need to also consult and involve education authorities and providers in the development of these resources.

2.1.6.2 Information about the Standards should be provided in a proactive, early and regular way

Mandated provision of information about the Standards at the point of enrolment in any educational setting to all students and families would assist students with disability to be aware of, or reminded of, their rights. It would ensure general awareness for people that may later acquire or be diagnosed with a disability. Increased general levels of awareness may also help build an inclusive culture in the educational environment which supports students with disability engage in education. One parent reported:

“I had to go and seek [the Standards] out. No one hands them to you, I don’t see them in any school setting, if you do have an issue, it’s very hard to find out where you can make a complaint” (Parent/carer, parents and carers of students with intellectual disability focus group).

For students with disability and their parents and carers, information provided at the point of diagnosis of disability, potentially within health settings, would ensure early access to this relevant information. One young person suggested an ‘induction pack’ for people with disability would have helped them understand their rights when they were in school.

People with disability access services across various sectors where they could potentially receive information about the Standards. This was identified as a missed opportunity to provide more connected services to people with disability by considering their holistic needs. The intersection between the rights and obligations under the Standards and the services and entitlements under the NDIS was not well understood.

The Review heard that a more proactive and targeted approach to raising awareness of the Standards with Aboriginal and Torres Strait Islander people was needed including providing information through community based Aboriginal and Torres Strait Islander organisations, such as health organisations. The Review heard that Aboriginal and Torres Strait Islander students with disability and their parents and carers would rather engage with trusted Aboriginal and Torres Strait Islander organisations than specific non-Indigenous disability providers.

2.1.7 Better communication, consultation and issues resolution would help

2.1.7.1 Educators could do a better job of reaching out, genuinely, to students with disability and their families

The Review heard overwhelmingly that the best results are achieved for students with disability when educators engage proactively with the Standards and initiate regular, authentic communication and consultation with students and families. As one participant commented:

“Our Preschool was phenomenal with consultation and support in an informal manner. My child was included and involved in all activities and was supported by a teacher to achieve this” (Parent/carer).

Students, parents and carers seek open, supportive education environments where information is offered upfront, options are provided, and students and families are involved in decisions about their education, including, but not limited to, reasonable adjustments.

The Review heard that there is an inherent power imbalance between education providers and students and their families which can negatively impact communication and consultation. Parents and carers commonly reported being excluded from conversations about the education of their children and being perceived as ‘interfering’ or ‘a nuisance’ and feeling ‘outside the equation looking in’. This can lead to communication with education providers becoming strained or confrontational, and relationships deteriorating over time. Respondents indicated that communication is often instigated by parents and carers rather than educators. This was reinforced by some students with disability who want educators to be much more proactive in their communication:

“I wish the teachers would reach out to me more rather than waiting for me to come to them which is embarrassing and confronting sometimes.” (Young person)

Where education providers’ engagement with the Standards is genuine, demonstrating real understanding, positive outcomes were reported by Review participants. Often this support and guidance was the result of a motivated individual educator. As one young person noted, “It was the active effort on behalf of teachers that made me feel like I was cared about and not feel like I was a burden like we are often told we are. So I think it does come down to relationship building.”

In other cases, the support and guidance were provided through a formal mechanism provided by the education institution. For example, the National Disability Coordination Officer (NDCO) Program assists people with disability to access and participate in tertiary education and subsequent employment by working to reduce barriers, facilitate smooth transitions, build links and coordinate services between the education, training and employment sectors.

The desire for better provision of information was also raised by Review participants. Parents and carers expressed that it was difficult for them to assess a provider’s capability to support their child because of the lack of publicly available information. Young people told the Review that they would like to hear from other students with disability about the support that they received from an institution, or a public website that ranks institutions based on how accessible they are and how they support students with disability.

2.1.7.2 Regular and meaningful consultation between educators and students and their families is critical

The Standards include a requirement for education providers to consult on making reasonable adjustments. However, ‘consultation’ is not defined in the Standards and there are different approaches by providers. Many people wanted the concept of ‘consultation’ to be defined within the Standards, with consideration given to the role of third-party independent advocates, with guidance material provided to assist education providers to consult appropriately.

Review participants emphasised that strong consultation processes, including frequent and collaborative communication between providers and students and their families, were critical to students receiving effective personalised support and reasonable adjustments. Some suggested that the level of consultation in planning programs and adjustments for students with disability often falls short of what could be expected in the Standards. There were examples given of scenarios where a lack of consultation led to generic rather than individualised adjustments – a ‘one size fits all’ approach. Canberra Community Law Limited provided a case study where a young Aboriginal boy with autism was told he “needed to wear nappies while at school, because the school lacks the toilet facilities” despite being able to self-toilet. This request was attributed by the participant to educator assumptions that the child’s needs were the same as other students with autism. One young person reiterated the reliance on a ‘one size fits all’ approach in the absence of consultation or attempts to understand a person’s individual circumstances and customise supports based on that understanding:

“‘One size fits all’ won’t do. They tried it in my primary school and high school, where you had teachers following and assisting even when you didn’t need help.” (Young person)

Parents and carers reported that without consultation, many schools and tertiary providers can make poor adjustments. Participants shared experiences where individual learning and behavioural plans have been developed without consultation and sometimes incorrectly, resulting in them being of “no use to the child” (Parent, telephone interview).

2.1.7.3 Proactive engagement with young people benefits the entire education community

Many participants raised the importance of students with disability being consulted and communicated with regularly about their needs and how they can best be supported in their education. Some reported that education providers are lacking processes to proactively and regularly work with and consult students. Discussions with young people suggested the need for educational institutions to proactively invite feedback from students with disability in order to ‘give voice’ to students on a regular basis. Anonymous feedback mechanisms such as surveys was a common suggestion:

“I think it is having internal measures, whether it is a survey, a forum, an anonymous feedback box, that the schools take on themselves and say, “Students, parents, families, community, tell us what we are doing right, tell us what we are doing wrong”, and then they are forced to read all those things and take action on them.” (Young person)

Other suggestions for offerings by education providers included annual workshops/webinars run by students with disability to enable them to speak about their experiences.

Effective communication was noted as particularly important for students from diverse backgrounds or with particular circumstances, and during disaster events. The Review heard that it can take additional time to build trusting relationships with CALD and Aboriginal and Torres Strait Islander people, and how important good communication is where English is not a student’s first language, to enhance collective understanding.

2.1.7.4 Early and effective resolution of issues is in everyone’s interest

Input to the Review often suggested the need for independent third parties or advocates to help families navigate the system or to resolve issues between students, families and education providers. It was suggested that this would support timely resolutions and mitigate the escalation of parents’ concerns to formal complaint levels. In the schooling sector, Western Australia provides an advocacy service and other jurisdictions (Queensland and the Northern Territory) are trialling the funding of advocacy organisations that support students with disability and their parents and carers to navigate the system. A peak advocacy body for people with disability commented:

"Parents are often navigating complex arrangements in many cases for the first time and are unfamiliar with processes and procedures that are well known to educators." (Developmental Disability WA submission)

Many participants reported experiencing difficulties in raising and resolving issues with their education provider. The Standards are silent on issue resolution processes prior to escalation to the AHRC.

Investment in consultation and early resolution of issues is important. It is generally recognised that if a student, parent or carer reaches the point where they seek to make a formal complaint, the relationship between them and the school or education provider has broken down. Further, the student is at risk of having already been excluded or disconnected from education.

2.2 Strengthening the knowledge and capability of educators and providers

This section is about the knowledge, skills and practice of educators and providers in supporting access and participation of students with disability in line with the Standards. The Review heard clear and consistent calls for reforms to strengthen the capability of educators and providers regarding the Standards and supporting students with disability. These calls came from students, parents, carers and educators themselves. There was also recognition that broader community attitudes and awareness impact the experiences of students with disability.

2.2.1 Educator capability and attitudes are central to student experience

2.2.1.1 Positive schooling experiences feature motivated individual educators

The Review heard a wide range of experiences from students with disability and their parents and carers. When these stories are positive, they feature motivated educators who have a good understanding of their obligations as well as the knowledge and skills to implement them. Where the experiences are negative, they often feature educators who do not have a good understanding of the Standards, or lack the resources (including time, skills and knowledge) to implement them.

When people shared positive education experiences, they described educators who consult the student and their parents and carers meaningfully and regularly, establish and update individual learning plans (or equivalent), adjust curriculum and learning activities in deliberate and tailored ways to enhance student engagement and learning, proactively ask about student needs, and respond willingly to concerns and feedback. When educators do these things, students describe feeling included, engaged, supported, confident, empowered, happy, relieved and seen.

However, students emphasised that these positive experiences rely on the attitudes and capability of individual educators and education leaders. Parents and carers sometimes reported feeling ‘blessed’ or ‘privileged’ to have found positive learning environments for their children, and expressed an anxious awareness that the duration of this positive experience was vulnerable to a change of educator, or a change to the providers’ leadership (i.e. school principal):

"I currently have a good [Year 12] coordinator, the only person who has supported me with my disabilities during my education. It is awesome, but a shame I have not had anyone until now. If I didn't have him, I would have stopped going to school, that is pretty important. He goes above and beyond and does not do the bare minimum.” (Young person)

“At times the adjustments were excellent, otherwise not there at all. This is within the same school and seemed to be at the discretion of the teacher or principal (a new principal came in and things changed for the better -- previously adjustments were discouraged).” (Parent, questionnaire)

“Thankfully we’re in a much better place now... but... we know that our experience is only as good as a simple change in teacher and/or leadership.” (Parent, submission)

2.2.1.2 Tertiary students with disability rely on centralised support

Educators in the higher education and VET sectors are drawn from a range of expert fields and industries and typically receive significantly less training in teaching practice than educators in other education sectors. As such, they have less opportunity to formally develop pedagogical capability and understanding of students’ diverse needs (see section 2.2.8).

Further, the structures and services to support students with disability in universities and large VET providers (such as TAFE) tend to be centralised with institutional disability officers or support units, which can lead to reduced expectations for educators to know and understand the Standards, and to obtain the skills and knowledge they need to implement them.

While such support services can be of great benefit to students with disability by providing dedicated support and enhancing the capacity of institutions to support them, all educators in all sectors need to be aware of their obligations under the Standards and have access to the knowledge and skills they need to fulfil them.

2.2.2 Educators need the capability to implement the Standards

On the whole, and across sectors, educators who participated in the Review demonstrated a desire to deliver positive learning experiences and described barriers they face in doing so. In addition, students and their parents and carers suggested what they would need from their educators to have more consistently positive learning experiences. Between them, they suggested that in order to fulfil their obligations under the Standards, educators need:

      To be aware of the Standards, or more specifically, to understand their legislative obligations under the Standards

      To have access to information and expertise which can assist them to develop adjustments to curriculum and learning activities which enhance the engagement and learning of students with disability

      To have a general understanding of disability and the way it impacts students’ learning, opportunities, and life experience

      The cultural capability and sensitivity to teach Aboriginal and Torres Strait Islander students and students from CALD backgrounds in culturally appropriate ways

      An understanding of the important role they play as educators in realising the human rights of their students

      To be skilled in student consultation and curriculum differentiation

      To be supported by their employers, colleagues and institutions through the provision of resources, including time and knowledge.

2.2.2.1 Many educators and providers have low awareness of their obligations under the Standards

In the schooling sector, there has been significant reform in recent years to enhance teacher capability and promote awareness of the Standards among educators. The Nationally Consistent Collection of Data on School Students with Disability (NCCD), introduced in 2013, reinforces schools’ existing obligations under the Standards by requiring schools to provide evidence that they have followed the processes laid out within them. This creates a routine touchpoint through which all schools must engage with the Standards, and justify their decision-making in accordance with it.

To support the NCCD, an online NCCD Portal was launched in 2019 to improve the quality of data available for education authorities and governments. The Portal is designed to support schools to deliver the annual NCCD, and it includes resources to support teachers to understand their obligations. It contains curated resources, interactive decision-making tools, case studies, illustrations of practice videos, infographics, podcasts, and accredited e-learning courses on the Standards. The NCCD Portal also includes resources for parents, guardians and carers to understand their rights under the Standards. The resources were developed in collaboration with state and territory education departments, external consultants and experts, and educators, and are accompanied by a helpdesk service.

Despite this, the Review heard consistently that many educators and providers remain unaware of the Standards, or misunderstand their legal obligations to students. This was reported by students, their parents and carers, and also by educators themselves, who described the awareness and understanding of their colleagues as low:

“To be honest, it deeply saddens me that so few teachers/schools seem [aware] of their obligations under the standards. I have had many teachers quite openly tell me that they have never heard of the standards. I also work in schools where students are denied access to therapist support and instead are repeatedly suspended despite having a positive behaviour support plan which simply and clearly outlines how to avoid escalation. This is happening with students as young as 4 years old.” (Disability service provider/worker for a disability organisation, questionnaire)

“I was an Assistant Principal prior to becoming an Advocate and I did not know of the Disability Standards in Education [sic] then. I only became familiar when I began my organisation. Teachers, Leadership Teams, Parents do not know of this document.” (Disability advocate, questionnaire)

Furthermore, the Review heard that educators would sometimes not provide reasonable adjustments to students with disability because they believed that not treating all students equally would be unfair to students without disability. One participant stated that “Educators feel that allowing these supports places those with a disability at an advantage over others” (Participant, education professionals and academics discussion board). This suggests that the concept of equity (rather than equality), which is central to the operation of the Standards, may not be fully understood by educators in the context of their obligations.

2.2.2.2 Educators and providers may not understand how to implement the Standards

The Review heard that even when educators and providers are aware of the Standards, they often do not have a good understanding of them, or how to implement them. Where understanding of the Standards was low, families reported inappropriate or ‘tokenistic’ adjustments being made which did not enhance student learning or engagement. These adjustments sometimes served instead as “box-ticking” to demonstrate compliance, or a “dumbing down” of the curriculum which revealed low expectations:

“The ‘adjustments’ that have been made effectively prevent my son from accessing the curriculum and allows the gap to widen even further with his peers. i.e. extra time on the non-evidenced based [reading program] while the rest of the class does writing.” (Parent, questionnaire)

“Many staff are great at providing adjusted activities (and listening to advice and ideas) to include all students, but other staff think of adjustments and inclusion as an afterthought and leave the student with a disability to do an alternate activity, often separate to their peers. Staff often think that some curriculum areas will not be possible for students with a sensory disability, and that the students will not be capable.” (Educator, questionnaire)

2.2.2.3 Low expectations affect the support offered to students

A culture of low expectations, especially of Aboriginal and Torres Strait Islander students with disability, was a feature of the Review consultations. This expectation often affected both the diagnosis and the support provided to these students, and in many cases, served to compound disadvantage:

“There is an overwhelming sense of low expectations, cloaked in language such as, ‘we focus on abilities’ and ‘everyone eventually finds what they are good at’, or ‘he will learn when he is ready’, rather than attempting to remediate difficulties. It is evident that the school would ‘tick the boxes’ in terms of compliance, however there is no demonstrable improved outcome for my son. For example a learning plan done in consultation with me, but it ignores my input and is then not actually used.” (Parent, questionnaire)

One Aboriginal and Torres Strait Islander principal emphasised that having high expectations and building authentic relationships is critical for the success of all students, but particularly important for students with disability, and even more so for Aboriginal and Torres Strait Islander students with disability. Work to change ideas of low expectations is strongly linked to improving the cultural capability of educators.

2.2.2.4 Educator cultural capability is essential to support Aboriginal and Torres Strait Islander students with disability

Many families reported that educators and other staff do not have sufficient cultural knowledge and capability to adequately support or teach Aboriginal and Torres Strait Islander students with disability, and this was acknowledged and lamented by educators themselves. In particular, there was poor understanding by educators that Aboriginal and Torres Strait Islander people value the advice of their community when making choices and decisions about their children. In the consultation webinar for educators, a quarter of the responses highlighted the importance of collaboration with students and families, and of developing ongoing relationships with families and communities including extended family such as community aunties and uncles.

Many respondents suggested that some Aboriginal and Torres Strait Islander families strongly prefer to work with Aboriginal and Torres Strait Islander educators and organisations, as culture and language are essential when determining appropriate educational adjustments.

Some submissions noted the link between cultural awareness and the development of appropriate reasonable adjustments, observing that punitive measures were used with students who were not able to adequately engage in learning. For example, a student with Attention Deficit Hyperactivity Disorder (ADHD) being removed from class because of behavioural issues rather than having learning challenges associated with a disability acknowledged and addressed. It was noted that poor educational experiences can lead to students disengaging from education and increased risk of interactions with the juvenile justice system.

Educators also raised where their own low cultural awareness made them reluctant to take steps to provide adequate support to Aboriginal and Torres Strait Islander students for fear of getting things wrong.

The Review recognises the importance of cultural capability for Aboriginal and Torres Strait Islander students with disability and their families and communities. Going forward, policy makers working within the disability context should consider the cultural capability needs of this cohort and build them into their work. This includes, for example, when developing new material or revising existing information to support Aboriginal and Torres Strait Islander students, creating new professional development programs for educators, revising relevant government program guidelines, or designing datasets.

The issue of cultural bias in diagnosis and assessment methods was also raised:

“A further matter requiring urgent attention is the need for adequate funding to research and develop culturally appropriate cognitive and other testing for Aboriginal and Torres Strait Islander children and young people. For example, experts have identified cultural bias in Wechsler testing scales. Researchers on this issue have called for the development of more appropriate assessments ‘based on the skills and abilities taught and valued' in Aboriginal and Torres Strait Islander cultures.” (Queensland Law Society submission)

The Review also heard that intergenerational trauma results in a reluctance on the part of Aboriginal and Torres Strait Islander families to seek support from non-Indigenous practitioners, or to report health concerns to educators and health authorities. There was strong support for improving educators’ capability in trauma-informed practice, both to assist them to sensitively support Aboriginal and Torres Strait Islander students and families affected by intergenerational trauma, and students of all cultural backgrounds affected by trauma.

2.2.3 The COVID-19 pandemic highlighted the need for educators and providers to be better prepared to individualise learning for their students

The COVID-19 pandemic caused disruptions to education routines in all sectors and required providers to make decisions about how to proceed. The Review heard a widespread sentiment from parents and carers across all sectors that students with disability were an ‘afterthought’ in this decision-making, and that few adjustments were made to support them in the changed context. While there are documented instances of effective engagement and adjustment, the provision of such support was heavily reliant on the willingness, preparedness and resources of individual schools and educators.

In many cases, established individual learning plans (or equivalent) or reasonable adjustments were not well adapted and applied to the new learning environment:

“Many young people were not contacted by their schools at the beginning of the pandemic and there was a lack of suitable educational material provided.” (Melbourne University submission)

“Home schooling demonstrated that many students were not receiving adjustments at school, as no suitable material was provided to the parents to continue with.” (Code REaD submission)

Parents and carers of students with disability reported that they had difficulty communicating with their children’s schools as they sought to reinstate some semblance of the individualised learning, including adjustments, they had benefited from pre-lockdown. Comments from a focus group for parents and carers included:

“A lot of activities (received by email) were not suitable. The school was not interested in learning what alternative options are, which is a bit sad.” (Parent/carer, parents and carers focus group)

“During COVID the school put out one adjusted curriculum for the whole year level. Nothing was suitable for my son.” (Parent/carer, parents and carers focus group)

A peak disability advocacy body, which surveyed parents post lockdown, found that more than half of students surveyed did not have regular contact with their education provider or access to accessible learning materials during the COVID-19 pandemic (Children and Young People with Disability Australia submission). One parent reported that she made a number of adjustments herself and shared videos with teachers as examples. Another parent observed:

“During COVID we received classroom work but no adjustments. There was an explicit assumption that I would be able to make the adjustments for my kids, so the responsibility was passed on to me.” (Parent/carer, parent and carers focus group)

Organisations representing school leaders also noted that equity gaps were amplified by the COVID‑19 pandemic:

“Educators struggled to keep students with disability safe, engaged and learning, noting that any success has been due to individual teacher initiative rather than an effective system response.” (Australian Government Primary Principals Association submission)

“[…] any success has been due to teacher innovation and agility rather than an effective system response. […] Some schools lost a line-of-sight on student individual needs and wellbeing.” (Australian Special Education Principals Association)

A peak disability organisation noted that students with disability in mainstream education settings can be viewed as a burden, and high stress events such as the COVID-19 pandemic expose a systemic ‘ableism’ that contributes to a lack of preparation to support those students. For example:

“They are so busy dealing with the masses that our needs are a long way down the list. In times of crisis I have seen people’s true ableist beliefs surface. ‘She’s autistic so she’s not going to deal with the changes anyway’.” (Parent/carer, parents and carers online discussion board)

Consultations highlighted systemic challenges around educators’ and providers’ preparedness to support students with disability during the COVID-19 pandemic. For example, it was noted that:

         Some schools and teachers used resources that were not accessible to students with disability and not compliant with Web Content Accessibility Guidelines (WCAG)

         The NCCD Portal Helpdesk received a higher volume of queries from teachers about how to make reasonable adjustments in remote learning settings.

In the VET sector, the COVID-19 pandemic highlighted shortcomings in content accessibility and understanding of universal design within the online delivery model. This is particularly important for students with disability who rely on assistive technology. The Review also heard that assistive technology can be incompatible with online learning systems used by universities.

While the disruption caused by the COVID-19 pandemic was rare and unexpected due to the global scope of the COVID-19 pandemic, interruptions caused by natural disasters have not been rare in Australia. The obligations of education providers under the Standards remain the same in times of disaster or critical incident. Educators and providers need to be aware of this and have the capability and preparedness to adapt learning activities so that they are accessible to all students, even in times of disaster or unexpected disruption to the delivery of education. Similar issues were also raised in the Disability Royal Commission, with the COVID-19 pandemic increasing the existing inequities experienced by people with disability. The Disability Royal Commission heard that people with disability were generally not specifically considered in emergency planning documents or policies, and that these were not responsive to their needs. Additionally, a lack of communication of information and a shift to inaccessible technology were issues for people with disability. The recent COVID-19 pandemic drew attention to areas which need to be strengthened by education providers when responding to these events.

2.2.4 Many educators do not know where to access resources to support specific disabilities

The Review heard that inappropriate reasonable adjustments are often the result of inadequate understanding by educators of the learning needs of their students and the nature of different disabilities. Students with disability expressed that they do not feel understood by educators:

“Other reasons have been due to teachers just really not understanding the situation I’m in and not understanding my disability, therefore they can’t respond appropriately to the situation.” (Young person)

“We need more education about disabilities in general in the education sector. This will bring more awareness to them, instead of having it stay as a taboo subject, something not to be spoken of, or a negative thing.” (Young person)

This was particularly evident in the case of students with ‘invisible’ disabilities, such as specific learning disabilities, mental health conditions, and the different presentations of autism and ADHD. These students frequently face difficulties obtaining reasonable adjustments for their disabilities because they are not seen to need them. Some participants felt there is an ongoing stigma attached to certain disabilities, especially those impacting behaviour, which prevents some educators from realising the need for adjustments to learning activities:

“I think it is also important to address the differences between physical and invisible disabilities, as a wheelchair user my schools could comprehend how it was a reasonable adjustment to allow me extra time to get from class to class however when it came to my invisible disabilities it was impossible to get reasonable adjustments.” (Young person)

“Invisible disabilities are completely ignored.” (Young person)

2.2.5 Educators who consult well create better learning experiences

As noted in section 2.1.7, reasonable adjustments are most effective when they are personalised in direct consultation with students through genuine communication and collaboration. Students and their parents and carers told the Review that educators often failed to consult effectively with them on the development of individual learning plans (or equivalent) and reasonable adjustments, at times resulting in their being of “no use to the child”:

“When making reasonable adjustments, schools and teachers should ask students directly about what would work best for them. No people with disability are the same, what might work for one person may not work for other person, can’t have one size fits all.” (Young person)

The Review heard that some providers and educators demonstrated a reluctance to consult with families altogether. Educators and parents and carers alike reported that communication between schools and parents and carers can become strained or confrontational over time:

“My daughter's disability is rarely considered. All the way through she has been expected to perform and cope as every other student her age despite having diagnosed disabilities. Any considerations she is afforded are up to her to access herself which is often unachievable due to her disability. Parental involvement is necessary and frequent yet this appears to be met with opposition.” (Parent/carer, questionnaire)

In one consultation activity, young people with disability observed that educators and providers can be daunted and afraid of what they do not know about disability and reasonable adjustments. This can undermine the consultation process and the partnerships that need to be established and maintained. The importance of open and transparent communication was emphasised, as was a willingness to ask questions and learn from students with disability and their families.

Under the Standards it is a requirement that education providers consult with students on the development of reasonable adjustments that ensure the student can enrol, access and participate in education. The Review heard a strong call for clarification over how this consultation should be conducted, and how often it should occur. There was also support for training which improves educator capability in consulting with students and their families and maintaining regular communication with them on student progress.

2.2.6 For students and educators in tertiary settings, barriers can play out differently

Participants, including educators themselves, reported that awareness of the Standards and educators’ obligations was particularly limited in the tertiary sector, and some educators reported that they are unclear on how to implement the Standards within VET and higher education settings. In higher education there is no requirement for educators to undertake professional development, however in VET there is such a requirement. As seen in 2.2.1.2 educators in these sectors are generally less likely to have covered the Standards and working with students with disability in their pre-service training courses than school teachers, and are less likely to undertake professional development in relation to supporting students with disability (see Box 2 for more information). As dedicated disability support officers are often employed by universities and larger VET providers such as TAFEs, educators in these settings may feel less responsibility to engage with disability themselves, or that they lack the expertise to do so.

Tertiary educators noted that many courses have ‘inherent requirements’ which can make them inflexible. Tertiary providers feel they are “sometimes hamstrung by external accreditation requirements stipulating participation expectations” (Participant, Tertiary webinar), preventing them from making reasonable adjustments that would allow students with disability to demonstrate their competencies and learning. Some students reported that universities had not advised students of the inherent requirements (the fundamental parts of a course that must be met by all students), particularly of practical classes, until they were years into their degree. Many participants called for inherent requirements to be explicitly indicated and explained prior to enrolment so that prospective students can make an informed decision about VET and higher education courses. Some also called for consistency in inherent requirements across providers. Educators called for more clarity around how to handle the rigidity of these requirements, and possibilities for adjustments to practical placements. The processes by which training packages and courses are developed and accredited in VET and higher education are explored in further detail in section 2.2.10.2.

In June 2020, the Australian Government asked the Equity in Higher Education Panel to develop a Student Equity in Higher Education Roadmap. The Roadmap will ensure that all students who have the desire and capability to study at university have the support they need to do so by setting the vision for equity in higher education in Australia, developing a prioritised plan for the higher education sector to support and develop higher education capacity to support students from under-represented backgrounds, and raising the profile of equity best practice in the sector to embed it more effectively in universities’ missions.

The Roadmap is particularly focused on identifying and addressing the barriers and challenges that students from low SES backgrounds, regional and remote backgrounds, Aboriginal and Torres Strait Islander students and students with disability face in accessing, succeeding, and completing higher education, and transitioning into future pathways including employment or further study. Following broad consultation, the Panel is scheduled to release the Roadmap in August 2021.

There is an opportunity for the Panel to embed the Standards in higher education institution policies and practices across the student lifecycle (pre-access, access, participation, attainment, and transition out) at both an undergraduate and postgraduate level as part of its development of the Roadmap.

2.2.7 Readily accessible information needs to be available for educators
to use

2.2.7.1 There are opportunities for better sharing of information across sectors and jurisdictions

To address gaps in educators’ and providers’ knowledge and capability, the Review heard strong support for better and more integrated sources of information, including training and exemplars, which educators can readily access. Although many organisations have created guidance material to support the implementation of the Standards, this information is often dispersed in various, disconnected locations, rather than located in one central repository that is known by educators to be a source of high-quality information. Educators report that this information is difficult to find or unavailable to them because there is no clear guidance on where trustworthy and useful information is located.

Conversations with states and territories, regulatory authorities and other organisations showed that there are a range of overlapping resources available across agencies, jurisdictions, and sectors. The risk is a piecemeal coverage of critical information, underutilisation of resources, and duplication of coverage with slightly varying interpretations of the Standards. An explanation for this could be that the Standards apply differently across sectors, and that jurisdictions identify different needs. However, the result is a confusing landscape which educators must navigate in order to find the information they need, adding unnecessary labour and delaying action. The NCCD Portal provides an example of a more comprehensive compilation of resources.

Additionally, participants raised concerns that information and good practice is not well shared between providers, sectors or jurisdictions, limiting the possibility for educators to learn from one another. The practical experience of other educators is a valuable resource, and better information sharing would improve knowledge across the profession.

2.2.7.2 Providers call for clarification of key terms, and examples of how these terms were interpreted in formal conciliation processes

As cited in 2.1.6.1, the Review heard that existing guidance material about the Standards is insufficient, particularly when explaining key concepts, such as ‘reasonable adjustment’ and ‘unjustifiable hardship’. One organisation said that this lack of clarity has occasionally led to conflict between parents and carers and schools, particularly around what constitutes a reasonable adjustment. The Review heard that in some cases, parents and carers have expected significant adjustments or support that a provider believes is unnecessary. For example, a parent, carer or student may request a full-time teacher aide as a reasonable adjustment, where an educator or provider believes alternative adjustments would be more effective. Participants shared their view that a wide range of interpretations were possible, and outcomes could depend on the education setting, the leadership of the institution, the knowledge of the educator or the resourcing available for supports. Providers called for a clearer range of illustrative examples, including precedents arising from actual complaints processes. They stated that these would better inform best practice and clarify the boundaries of their obligations.

2.2.7.3 Educators and providers call for better practical examples of effective reasonable adjustments

Educators and providers also expressed a desire for more technical information and guidance on how to develop effective reasonable adjustments and make appropriate modifications to curriculum. In particular, they called for case studies that go beyond ‘middle of the road’ examples, including a range of options that have been found to be effective in different settings and sectors. Educators expressed that the current support material including the exemplars of practice, developed by the Australian Government Department of Education and Training following the 2015 Review, do not help in marginal situations with no clear ‘correct’ approach, or where there is disagreement about what an appropriate or reasonable adjustment is. Further information and examples to use in these circumstances would give educators confidence to make decisions that align with the objects of the Standards.

2.2.7.4 Educators need access to information on specific disabilities

Educators also called for access to better information on specific disabilities, including invisible disabilities, mental health conditions, the impact of trauma, and how particular adjustments can enhance learning for students. Participants in the Review acknowledged that it is unreasonable to expect educators to have the knowledge and skills of medical professionals. However, in order to develop appropriate reasonable adjustments, individual learning plans (or equivalent) and behaviour management strategies, educators need easy access to further information on specific disabilities to understand the needs of their students. The absence of this information was perceived as an impediment to appropriately supporting students with disability.

Participants in the tertiary sector noted that most available resources are focused on schools and identified a need for resources covering the application of the Standards in the context of VET and higher education. They noted a need for clarification of providers’ obligations and options with regards to practical placements, which are often requirements of tertiary courses.

2.2.8 There was a near universal call to strengthen training for educators

Improved training for educators was a strong theme throughout consultations in all sectors, with calls made for more targeted pre-service training on the Standards and their implementation, as well as for regular, ongoing and mandated professional development for all staff. This was supported by students and their families, organisations, and educators, who reported that they do not feel equipped with adequate training or information to understand the diverse needs of students with disability and implement adjustments to improve their learning experience:

“Students can’t feel comfortable and shine where the staff isn’t trained and resourced to support them to be who they can be.” (Parent/carer, parents/carers of students with autism & ADHD focus group)

2.2.8.1 Pre-service qualifications

The Review heard that current educator qualifications do not sufficiently equip prospective educators with the skills or knowledge they need, with many educators reporting they want clearer guidance and opportunities to practice the design and implementation of evidence-based adjustments. Requirements for pre-service training and accreditation of educators vary between sectors and across jurisdictions. As part of their qualification, pre-service early childhood, primary and secondary school teachers are required to demonstrate knowledge and understanding of legislative requirements and teaching strategies that support the participation and learning of students with disability. However, there is no such requirement for pre-service educators in VET or higher education sectors (see Box 1).

Opportunities exist to strengthen pre-service training requirements in all sectors, so that all educators are aware of their obligations under the Standards, and where they can access information to help them to fulfil these obligations.

Box 1: Qualification and accreditation requirements for pre-service educators by sector

In the early childhood education and care sector, there is a distinction between teachers and educators. Early childhood teachers must complete an initial teacher education course, and in 4 of the 8 jurisdictions must be registered according to the same requirements as school teachers (see below). Registration is not a requirement for early childhood teachers under the National Quality Framework (NQF), but it is a requirement under some state and territory legislation.

Early childhood educators must complete a VET qualification (Diploma or Certificate III) approved by the Australian Children’s Education and Care Quality Authority (ACECQA). There are also some state and territory specific qualification requirements for working with school age children (e.g. in outside school hours care services). The Diploma of Early Childhood Education and Care includes a core unit on implementing strategies for the inclusion of all children. In the Certificate III qualification, basic introductory level coverage is spread across a number of different units. National vocational qualifications are currently under review, and new qualifications are due to be released in 2021.

In the schooling sector, initial teacher education programs are accredited by state and territory regulatory authorities in line with the nationally agreed Accreditation of Initial Teacher Education Programs in Australia: Standards and Procedures. The Accreditation Standards set high level requirements and work to ensure all initial teacher education graduates meet the requirements of the Graduate career stage of the Australian Professional Standards for Teachers (Teacher Standards). The Teacher Standards apply nationally and underpin teacher registration processes in all jurisdictions. They articulate what teachers are expected to know and be able to do at 4 career stages: Graduate, Proficient, Highly Accomplished and Lead. Importantly, teachers at the Graduate level of the Teacher Standards must be able to practice and demonstrate:

The Australian Institute of Teaching and School Leadership (AITSL) has also developed the Australian Professional Standard for Principals which sets out the principal’s role in engaging and working with the community, embracing inclusion and supporting the needs of students, families and carers facing complex challenges.

Educators in VET require a Certificate IV in Training and Assessment or a diploma or higher education degree in Adult Education. Two elective units on teaching students with disability were introduced in November 2019. It is unclear how high the take-up of these units has been. The Certificate IV in Training and Assessment includes the elective Plan and implement individual support plans for learners with disability. An additional elective, Develop and implement accessible training and assessment plans for learners with disability, is included in the Diploma of Vocational Education and Training, and the Diploma of Training Design and Development.

In higher education, educators are required to have skills in contemporary teaching, learning and assessment, although there is not a specific teaching qualification requirement set. The Higher Education Standards Framework 2015 requires that teaching practices and approaches to learning must be designed to accommodate student diversity, including under-represented or disadvantaged students. The Higher Education Standards Framework also require that participation, progress, and completion by identified student subgroups are monitored and the findings are used to inform improvement of teaching, learning and support strategies.

2.2.8.2 Ongoing training – professional development

Improving pre-service training for educators across all sectors would go some way to improving the knowledge and understanding of those entering the field. However, this only encompasses a small portion of the total workforce. As most educators are already in service, the Review heard strong support for regular, mandated professional development to equip these educators with the knowledge and skills they need to fulfil their obligations under the Standards, and to continually refresh and extend their capability. Educators are generally not currently required to undertake professional development which covers the Standards or strategies for working with students with disability, or this is not a priority area where professional development is mandated. Mandated and regular training linked to the initial and ongoing registration of educators would provide an opportunity to improve their capability and understanding (see Box 2).

Box 2: Professional development requirements for educators by sector

Requirements for professional development vary between sectors and jurisdictions. Educators in schools are required to undertake a minimum amount of professional development (on average 20 hours per year) in accordance with state and territory legislation and regulation requirements. Although teachers wishing to progress through AITSL’s ‘career stages’ must demonstrate their knowledge and understanding of legislative requirements and teaching strategies for supporting students with disability, the Australian Government is not aware of any states and territories currently requiring that teachers undertake professional learning in this area.

In early childhood education and care early childhood teachers are required to be registered in New South Wales, Victoria, South Australia and Western Australia. Registration is not a requirement in the other jurisdictions, but may be a condition of employment. Early childhood teachers who are registered are subject to the same professional development requirements as primary and secondary school teachers in their jurisdictions. For certificate- or diploma-qualified early childhood educators, there are no regulatory requirements to undertake professional development. The National Quality Framework (NQF) sets the benchmark for developing staff and leadership within services, with an expectation that services assessed and rated as Meeting National Quality Standard have evidence of enabling professional development activities for educators and other staff to update their knowledge and skills.

In VET, registered training organisations are required to ensure their staff undertake some professional development (Standard 1.16 of the Standards for Registered Training Organisations 2015) however the amount and frequency is not specified, and there is no requirement for this training to address the Standards or the needs of students with disability.

In higher education there are no specific requirements for educators to undertake particular professional development, however, educators must have knowledge of contemporary developments in the discipline they are teaching in, informed by continuing scholarship or research. The Higher Education Standards Framework also require that there are mechanisms for teachers to receive feedback on their teaching, including from students, along with broader monitoring and review of student progress and the quality of teaching and learning.

2.2.8.3 Not all educators understand the connection between their work and a student’s human rights

Many contributors to the Review suggested that educator training about the Standards should be grounded in a human rights framework, incorporating learning on the legislative context of the Standards and concepts of equity, disadvantage and intersectionality. This could include knowledge of the social model of disability and Australia’s commitment to the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD). Educators, students and families felt that explicit linkages between the Standards and human rights would help to shift the emphasis of the Standards onto the positives for all students that come from inclusive environments. It was suggested that a focus on human rights, rather than compliance, may elicit greater buy-in from educators and the broader education community:

“I think inclusion starts with mindsets, and the DSE [the Standards] is comprehensive although open to interpretation. When schools are willing to instigate inclusion, they will find ways to do the right thing, with the DSE as guidelines to help. But if schools are not pro inclusion, especially for those with high and complex needs, guidelines are only used as justification for exclusionary practices.” (Young person)

2.2.9 Whole-of-institution awareness supports cultural change

Educators repeatedly emphasised that in addition to the right knowledge and training, their ability to deliver quality education for students with disability depends on support from their employers, colleagues and the communities they work in. The Review frequently heard the importance of ‘whole-of-institution’ awareness, extending to all staff, students without disability, and their families. Throughout consultations, participants from all sectors emphasised that a holistic organisational approach to inclusivity and supporting students is required. Participants testify that this improves institutional cultures and community attitudes towards students with disability, creates space for educators to prioritise reasonable adjustments, and increases accountability.

Many of the examples that the Review heard of positive educational environments incorporated a considerable degree of whole-of-institution awareness:

“If I could change one thing, I would make disability education compulsory for teachers, staff and students as a part of the curriculum.” (Young person)

“It's up to the school to interpret what is reasonable adjustment and it depends very much on the mindsets of the staff whether they understand what students' needs are and think laterally outside the box to create the environment for these students to learn alongside their peers with some allowance for differences.” (Young person)

2.2.9.1 Educators need employer and community support to implement the Standards well

Educators who are passionate about inclusion also reported facing difficulties finding time to consult with students, parents and carers, develop individual learning plans (or equivalent), research and implement reasonable adjustments, participate in additional training, and share knowledge between colleagues. Educators told the Review that they can face challenges implementing their obligations under the Standards if the provider does not provide the resources to do so. Parents, carers and students also acknowledged this:

“With regard to the rights of students with disability, the problem is with school personnel who don’t value inclusivity.” (Young person)

“I’m never given time to actually connect with the students and parent/s enough to understand the student’s abilities and needs. I’m left guessing what to do and flying by the seat of my pants.” (Educator, educators webinar)

“I’ve tried to invite teachers to specific training about my children to be told they don’t have the resources to replace them.” (Parent, parents and carers of students with autism and ADHD)

“I have trouble working in the afternoons because the school calls me with regularity to come pick [my child] up, and I just think that’s one of the consequences of trying to make it work in a mainstream school when they don’t have enough resourcing to have that one-on-one or even three-on-one from the school support officer.” (Parent, parents and carers of students with autism and ADHD)

Participants from all groups suggested that where education providers promote better whole-of-institution awareness, they are more likely to prioritise and allocate resources (including staff time) to ensuring the needs of students with disability are met.

2.2.9.2 Support staff also play a significant role in developing culture, and need to understand the Standards

Specific examples of the benefits of whole-of-institution awareness were noted. For example, participants felt that better awareness of the Standards by front office staff, and all staff involved in the enrolment process, would help to prevent gatekeeping (commonly described as controlling access to goods or services, such preventing a potential student’s enrolment) by making clear the legal obligations of providers to facilitate access for students with disability.

One respondent commented:

“The preschool my older child enrolled in was very vague about my son's proposed enrolment – "maybe", "we don't know if we can cater for him", and made me feel unwelcome bringing him along to family/community events while his sister was enrolled. As opposed to active discrimination, their coldness achieved its desired aim: we did not pursue the enrolment. Our local public school in NSW has been pleasant and professional and clearly showed an awareness of the standards.” (Parent/carer, questionnaire)

Participants also reported that education institutions with better awareness are more likely to have a good preventative policy in place and to take action against harassment and victimisation of students with disability. While not all staff in education providers require the same depth of knowledge as educators themselves, given the important role that support, administrative staff and teacher aides play, training for all staff could have a significant impact on compliance with the Standards and institutional culture. The short e-learning courses already available on the NCCD Portal could provide a template for the development of such training.

2.2.9.3 Education leaders, such as school principals, have the biggest influence on the culture in education providers

Awareness, understanding and genuine engagement with the Standards is particularly important for education leaders, as they set the culture within institutions and determine the degree to which adjustments are prioritised and resourced. At the school level, parents and carers of children who had changed schools noted that the most positive learning outcomes were associated with an inclusive leadership team, especially the principal:

“It has been my experience that Principals are not always familiar with the Standards, often reluctant to explain or uninformed about the enrolment process - encouraging students to attend a [school for specific purposes] when, with adjustments and modifications, the student with a disability could attend the local primary school.” (Teacher/educator, questionnaire)

“It also does also come down to the training/experience and teaching style of the individual teacher. We have also found that lots of teachers are fantastic, but bound by the constraints /rules/regulations/ general culture of the broader school environment and the staff in leadership positions.” (Parent/carer, questionnaire)

The Disability Royal Commission heard about the importance of school principals, particularly in relation to the increased decision-making autonomy that has come with the increasing devolution of authority to the school level in recent years. The Disability Royal Commission heard that there were advantages to this, with one principal stating that “As principal, I have the autonomy and the moral imperative to address every student succeeding with every opportunity that I am given. Within the constraints of my resourcing constructs, I have the ability to manipulate and manoeuvre, be flexible and use my resourcing to target the areas best needed on a day-to-day basis” (Disability Royal Commission public hearing – 6 November 2019, Judith Fenoglio, Principal – Ingham State High School). However, this increases the need for principals to have a close understanding of their obligations under the Standards, as well as the impact that they can have on the lives of students with disability and their families. Principals have the authority to make decisions about who they enrol in their school, and as such their knowledge of the Standards is critical to reduce and eliminate gatekeeping practices. Principals need to understand clearly what their responsibilities are regarding enrolment, ensuring students’ participation, and providing reasonable adjustments.

In contrast, a researcher in inclusion and disability in education told the Disability Royal Commission that this discretionary power provided to schools and principals often leads to unevenness in practice and that principals “have considerable autonomy and discretion in how they allocate funds, and the adjustments and interventions that they choose to implement, or even whether to implement at all” (Disability Royal Commission public hearing – 14 October 2020, Dr Kate de Bruin). This unevenness points to confusion around the obligations of schools with regards to funding support for students with disability, and where this funding should come from.

2.2.9.4 Providers and families are confused by funding sources, and providers are limited by the funding they receive

Educators and providers frequently raised funding as a limitation on their ability to provide reasonable adjustments. Many educators stated that they did not have sufficient funding to support their students, and this view was particularly common in the schooling sector.

In the schooling sector, both the Commonwealth government and state and territory governments contribute to the cost of education. Commonwealth funding relies on a needs-based funding model which uses the Schooling Resource Standard (SRS) to calculate loadings. The SRS is an estimate of how much total public funding a school needs to meet the educational needs of its students. It is made up of a base amount for every primary and secondary student, along with 6 loadings, including for students with disability. The disability loading of the SRS is calculated on information collected under the NCCD, which has a definition of disability based on the DDA and the Standards. Importantly, this means that a student does not need to have a diagnosed disability to be recognised under the NCCD. The total pooled amount of Commonwealth recurrent funding is provided to approved authorities (the organisation responsible for the school). Approved authorities can either operate as stand-alone with single or a small number of independent schools, or as a group of schools that operate collectively under a single organisation, referred to as systems. School systems approved by the Commonwealth have the flexibility to distribute funds according to their own needs-based arrangements that meet requirements under the legislation. This means the funding amount schools in systems receive may differ from what is allocated through the Commonwealth funding model.

Parents and carers told the Review that some schools referred to their children as having an ‘unfunded’ disability because of the school system’s funding arrangements, which contribute to instances of gatekeeping or reasonable adjustments not being provided. The Review heard that these different funding models can cause confusion, and it was not always clear how or why a student does, or does not, receive funding. Parents and carers reported that there was no clear visibility of how the additional funding that their child receives is directly related to the support their child received, and there was a feeling that additional funding for students with disability was consolidated into a school’s general revenue and also funded general school activities. These issues were also raised as part of the Disability Royal Commission, and are consistent to the issues raised in section 2.2.9.3 relating to principal autonomy:

“Leadership at the school I am working at fail to prioritise the training needed for teachers to adequately provide for students with disability. They still operate on old models where students with severe disability are educated separately in a specialised program, and students with mild disabilities are left to 'drown' in the classroom. NCCD funding and Support Teacher allocation is pooled into 'general' funds and teaching allocations and there seems to be no accountability. I have tremendous concerns and am currently on stress leave from the bullying I received in trying to advocate for these students.” (Educator, questionnaire)

In addition, participants told the Review that there is significant confusion about whether the NDIS or the education provider is responsible for funding supports and adjustments. This confusion extends to the providers themselves, with parents and carers reporting that the education and NDIS providers often claim that the other is responsible for the support. In general, the NDIS is “responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education or training attainment)”.[4] Despite this guidance, and other resources that have been made available, there continues to be confusion.

2.2.10 Whole of system integration embeds a culture of inclusion

2.2.10.1 Resources, curriculum and platforms are not always accessible

Some participants told the Review that learning materials they were provided by educators were not accessible, and that students and their parents and carers were required to convert them into accessible formats. This was particularly the case for students who are blind or have low vision, where resources were not provided in alternative formats (such as large print, Braille, or audio) or where changes were not made to allow students’ independent navigation of physical environments:

“My son isn’t allowed to access the playground at lunchtime as the school have deemed it is not safe for him.” (Vision Australia submission)

Across all education sectors, participants raised the need for design to be accessible and non-discriminatory. Participants noted that better integration of accessibility principles into education policies and frameworks would prevent much of the need for educators to research and develop labour-intensive reasonable adjustments. To this end, there was a strong call for accessibility to be embedded into policies, guidelines, resources, materials, physical environments and curriculum.

Many peak bodies pointed to the ‘transformative potential’ of universal design for learning (UDL) principles for improving the accessibility of curriculum and learning materials. Curriculum developed in accordance with UDL principles is designed for differentiation, with the in-built flexibility to be used by students in multiple ways according to their needs and abilities. Starting from a default of accessibility and universal design, rather than ‘retrofitting’ accessibility to materials as required, has the potential to more effectively facilitate the development of reasonable adjustments by educators. As one participant in the Schooling webinar noted, the result of this would be “accessibility not being an afterthought”. The integration of UDL and other accessibility principles would require the collaboration of many stakeholders, including governments, providers, regulators, and curriculum and assessment authorities.

Digital resources were identified as a particular point of concern, and this was highlighted during the COVID-19 pandemic as learning shifted to virtual spaces. For example, peak bodies reported that online platforms used by universities are often not compatible with screen readers and voice navigation technology. Participants noted that the Web Content Accessibility Guidelines (WCAG) did not exist when the Standards were introduced, but have since become essential knowledge for people who develop learning resources. They made the case that these guidelines should be used as the basis for all current and future digital resources, to ensure that they are accessible to all students. There was a call for guidance material to assist education providers with the development and selection of resources, and to assist publishing companies and resource developers with ensuring their resources are accessible.

2.2.10.2 Tertiary education programs and courses are seen as inflexible

As noted in section 2.2.6, many qualifications in the tertiary sector are developed to meet the accreditation requirements of the industries and professions they prepare students to work in. As such, the development of non-discriminatory curriculum in VET and higher education involves a complex landscape of stakeholders including Industry Reference Committees and professional accreditation bodies. Participants from these sectors raised concerns around limitations to accessibility imposed by the demonstration of competencies, including in relation to work placements. Many participants felt that curriculum in the tertiary education sector was too inflexible, and that the ‘inherent requirements’ of courses were inadvertently discriminating against students with a disability.

One peak body reported that a student was told that they could not enrol in a course of study, as they would not be employed because of their disability: “The Head of the school said I shouldn’t waste my time doing the course, as no-one would hire a person with a vision impairment” (Blind Citizens Australia submission). Other students said that educators could not, or were unwilling to, make reasonable adjustments to enable their successful completion of work placements, and that the requirement to demonstrate competencies were being narrowly interpreted.

The Review heard that students with disability were not able to demonstrate their understanding and ability in alternative ways because educators had a literal interpretation of the requirements. Similarly, the Review heard from educators that while many of them understand students have the right to reasonable adjustments, they are unclear on how to implement these within the VET sector. Some participants commented that reasonable adjustments were not made to entrance requirements for some courses, such as exams for medical degrees, making these courses inaccessible to some students with disability. Participants called for inherent requirements to be explicitly indicated and explained to prospective students prior to enrolment, and some called for consistency in inherent requirements across providers. Additionally, participants considered that inherent requirements should be accompanied by a strong justification.

Box 3 details the processes by which VET and higher education courses are accredited. In VET, an Industry Reference Committee made up of representatives of industry submits proposed training packages to the Australian Industry and Skills Committee. In higher education, providers work with professional accreditation bodies to ensure their courses meet the requirements of professions. In some health professions this process is regulated by government to ensure safety.

While the Standards apply to professional accreditation bodies and the Industry Reference Committee through the delivery of their accreditation functions (Standard 1.5, (g) (iii)), neither process systematically calls for these groups to consider the Standards in the development of courses. As such, these organisations may have poor visibility of their obligations (and those of education providers), the needs and rights of students with disability, and of the possibilities for more accessible requirements which still serve their purpose of ensuring quality.

Box 3: Accreditation of courses in the tertiary sector

Most nationally recognised VET qualifications consist of units of competency developed through a process of national consultation with industry and set out in Training Packages. Training Packages must be submitted to the Australian Industry and Skills Committee (AISC). AISC then recommends national training package products to skills ministers for endorsement. As part of this process, a Quality Report is prepared by a member of the independent Quality Assurance Panel, which provides an assessment of whether or not the proposed training package components meet the requirements set out in the Standards for Training Packages 2012, the Training Package Products Policy and the Training Package Development and Endorsement Process Policy. The Training Package Products Policy stipulates that:

Skills Service Organisations (SSOs) are independent, professional service organisations that support Industry Reference Committees in their work developing and reviewing training packages. Prior to commissioning a Quality Report for Training Package components under development, SSOs must have an Equity Report completed by either:

This Equity Report Template does not specifically mention disability or name the Standards, instead referencing Commonwealth anti-discrimination legislation and associated standards and regulations. Additionally, there is no specific reference to an obligation being placed on the person preparing the Equity Report to assess Training Package components against the Standards.

VET is also delivered through accredited courses. These complement training package qualifications by ensuring training courses can be developed quickly and by supporting niche skills needs. VET accredited courses are regulated against the Standards for VET Accredited Courses 2012 and approved by the VET Regulators.

Note: The Heads of Agreement for Skills Reform, signed by all Australian governments in July 2020, outlines immediate reforms to strengthen Australia’s training system to support Australia’s economic recovery. This includes reforms to simplify, rationalise and streamline national VET qualifications across industry occupation clusters and the Australian Qualifications Framework (AQF), and introduce improved industry engagement arrangements.

In higher education, professional accreditation of university courses of study is intended to ensure that a course of study meets essential criteria in the training and education of its students in the relevant professional discipline, and that graduates from that discipline achieve the professional competencies and learning outcomes necessary for entry into the relevant level of professional practice.

Professional accreditation can be either regulated or non-regulated. Government, through the Australian Health Practitioner Regulation Agency, regulates some health professions where it seeks to assure public safety, and designates specific professional bodies to accredit courses. In unregulated professions, professional associations may establish an accreditation function as part of their wider professional services and operations. Where professional accreditation of a course of study is required for graduates to be eligible to practise, the course of study is accredited and continues to be accredited by the relevant professional body.

Academic accreditation refers to the evaluation of a course of study (either by the Tertiary Education Quality and Standards Agency (TEQSA) or by a self-accrediting provider such as a University) against course requirements specified in the Higher Education Standards Framework (HESF) and the Australian Qualifications Framework (AQF). The HESF includes specific standards and requirements for academic governance, course design and delivery, staffing, facilities and infrastructure, learning resources and educational support and, in particular, require that staffing and resourcing for courses are sufficient to ensure that students achieve course learning outcomes. The AQF mandates the learning outcomes for each level of study, which includes the depth of knowledge and the level of application of that knowledge, that a graduate should possess.

2.3 Embedding accountability for the Standards throughout the education system

This section focuses on how the education system holds itself accountable for implementing the Standards. As outlined in earlier sections, calls for greater accountability for the implementation of the Standards was a common theme heard by the Review. Students, parents, carers and peak bodies expressed their concern that the complaints-based mechanisms for compliance was an ineffective model for ensuring compliance by education providers. They also considered there to be a lack of available data on the experiences of students with disability and how the Standards are implemented.

2.3.1 There is a lack of oversight and consequences for non-compliance

A common view heard by the Review was that the Standards ‘lack teeth’, and there are few consequences when providers are non-compliant. Many participants believed that non-compliant behaviour was occurring, such as gatekeeping, not giving reasonable adjustments, and bullying, but that there was limited accountability and few repercussions for non-compliance. Many believed that a lack of consequences results in providers not being motivated to comply with the Standards, and discouraged students and families from making complaints.

Students and families felt strongly that providers were not proactive in complying with their obligations under the Standards, and it is left to families to constantly push for support for their children by raising issues or making complaints. One parent noted “We need to know what we have to aim for and achieve, but who actually checks that anybody is meeting those Standards? Who actually monitors or guides or provides support for schools to actually follow those Standards? That’s the question.” (Parent/carer, parents and carers of students with intellectual disability focus group). It was noted that complex complaints processes make it easier for providers to ‘get away’ with non-compliance.

To address the issues of a lack of consequences and accountability, a common suggestion was to have an independent body to handle complaints and to actively monitor providers’ compliance with the Standards. This concept was raised by participants across all education sectors. Many participants advocated for this body to audit providers’ compliance, with some suggesting that each provider be given a ‘score’ based on the audit’s result. Some participants suggested that the remit of the AHRC be expanded to include this function, or that a new authority be established for this purpose.

2.3.2 Some organisations called for an overhaul of the existing legislation

Some participants, particularly peak bodies and disability discrimination legal services, called for broader changes to the DDA and Standards.

2.3.2.1 The current complaints system does not drive systemic change

Participants felt that the current complaints-based mechanism used for compliance under the DDA has the effect of redressing individual situations (when issues or complaints are successfully raised and resolved) but does not readily support or drive systemic change. Additionally, proportionally few complaints progress through the formal process, limiting the lessons that can be learnt by the system as a whole.

As the Standards sit under the DDA, formal complaints are made to the AHRC. The steps involved in making a complaint to the AHRC are[5]:

      Making a written complaint

      Investigation of the complaint by the AHRC. This can involve contacting the person or organisation the complaint is about (the respondent), or other people who are mentioned in the complaint. The AHRC may decide not to proceed with the complaint at this point

      Conciliation between the complainant and the respondent, which usually involves a face-to-face or telephone meeting. Many complaints are resolved at this stage and do not need to proceed any further[6]

      If conciliation does not resolve the complaint, a complainant may take it to court for a formal decision. The AHRC cannot take a complaint to court on someone’s behalf or support a person to take a complaint to court, and this step usually involves lawyers and legal services.

The AHRC does not have the power to decide if something is unlawful; this can only be determined by a court. This means that a complaint must be taken to court for a formal ruling on whether discrimination has occurred. Complaints resolved by conciliation are not always made public, which stops other organisations and people with disability understanding and learning from what has occurred in other, potentially similar, situations.

Many families shared their concerns about escalating complaints, especially given the significant personal resources that are required to pursue a complaint in the legal system or the AHRC, further noting that costs acted as a disincentive for families.

2.3.2.2 There are issues with the operation of the DDA and interaction with the Standards

Some organisations argued that the DDA as a piece of legislation is not operating as intended and called for an overhaul of the DDA and the Standards. These organisations believe that even where a complaint proceeds to a court to make a formal decision on whether discrimination has occurred, previous cases have set legal precedent that make proving discrimination extremely difficult in practice. Some of these bodies also stated that developments in case law around the DDA have led to misalignment between the DDA and the Standards, particularly in relation to reasonable adjustments and comparator tests for determining whether a student with disability has been treated ‘on the same basis’ as a student without disability[7] .

Some organisations further proposed the need to modernise the definition of disability within the DDA to be based on the social model of disability, rather than based on a deficit model. The Review recognises the importance of these matters and has referred them to the Australian Government Attorney-General’s Department (AGD) for consideration. Actions to address these issues would best be dealt with in a holistic way that considers the DDA and its 3 Standards (education, transport and premises standards) collectively.

2.3.2.3 Alignment with international obligations

A common theme heard by the Review was that the Standards and DDA are inconsistent with the UN CRPD. Organisations noted that there are some issues with the definitions of specific terms,[8] however the major concern was whether Australia was complying with the rights of children with a disability to an inclusive education.

Some of these organisations advocated for the creation of an ‘Inclusive Education Act’ that would replace the Standards, integrate the UN CRPD, and be more prescriptive than the Standards through explicitly guaranteeing the rights of students with a disability to education in a mainstream setting.

As outlined in the Australian Government’s Background Paper on the UN CRPD[9] provided to the Disability Royal Commission, the Government’s view is that the UN CRPD allows the use of both mainstream education and specialist schools for persons with disability. The Australian Government’s recurrent school funding arrangements reflect the policy position that parents and carers are best placed to choose the most appropriate educational setting that meet the needs of their child.

2.3.2.4 The Guidance Notes to the Standards are not well known or understood

The Standards are accompanied by Guidance Notes “to provide additional explanatory material, including background information and comment, to assist the reader in interpreting and complying with the Standards”[10]. Despite being explicitly included in the Terms of Reference and in consultation questions, the Review heard limited feedback on the Guidance Notes. Feedback on how to properly interpret and apply the Standards, however, was a strong theme of the Review.

Where feedback about the Guidance Notes was provided, it varied. Some providers and organisations found them useful, while others consider them to be too difficult to understand with not enough practical guidance. Participants noted that even where the Guidance Notes provide clarifying information on the meanings of terms such as ‘on the same basis’, ‘unjustifiable hardship’ or ‘reasonable adjustment’, these are still confusing and written in a ‘legalistic’ way. Additionally, it was noted that the Guidance Notes are out of date; for example, they refer to the Human Rights and Equal Opportunity Commission, which was rebranded as the Australian Human Rights Commission in 2008.

It is unclear to the Review how widely used the Guidance Notes are, and by whom. Feedback indicates that the general public finds them inaccessible, and their wording makes them more suitable for technical audiences. The Guidance Notes are most likely to be of benefit to advocacy and legal groups. The department will work with the AGD to consider amendments to the Guidance Notes, and will consult peak bodies for disability and advocacy groups in this work.

2.3.3 Responsibility for implementing the Standards rests with those responsible for delivering education

Responsibilities for implementing the Standards reflect the existing distribution of responsibilities for education in Australia. Educational authorities, educational institutions and education providers (including bodies who develop or accredit curricula or training courses) all have direct obligations under the Standards.

As the owners of the legislation, the Australian Government has specific responsibility for enacting and amending the DDA and Standards and conducting 5-yearly reviews of the Standards. It has some direct responsibility for implementing the Standards in respect of the (usually shared) responsibility for the national agencies and regulators, and any bodies involved in the development and accreditation of curriculum and training material.

Responsibility for the delivery of many aspects of education – and therefore for implementation of the Standards in practice – rests with states and territories, as well as with private providers.

One of the existing mechanisms used by states and territories to examine the effectiveness of their own services is an audit. State auditors-general offer an independent assessment of performance of public sector entities and their services on topics that are of strong interest to the community. Positive reports build community confidence and adverse findings help alert the public and jurisdictions to areas for improvement.

The Review is aware that the Victorian Auditor-General’s Office recently undertook an audit of Melbourne’s tram network and the progress that had been made to comply with tram accessibility requirements and the strategies, plans and programs being used to achieve compliance with the Disability Standards for Accessible Public Transport 2002. The Review considers that it may be open to auditors-general in jurisdictions to incorporate consideration of the implementation of the Standards into a relevant performance audit related to their delivery of education. Any learnings could help to inform the next review of the Standards in 2025. Several auditors-general already have relevant audits in their forward workplan.

2.3.4 Policy and regulatory alignment provides a mechanism to strengthen implementation of the Standards

Each education sector has core documents, such as legislation or national frameworks, which are seen by the sector as the main document to comply with, and that sector regulatory authorities use in their oversight activities. These include:

      Early childhood education and care: The National Quality Framework

      School education: Australian Professional Standards for Teachers; Australian Professional Standard for Principals and Leadership Profiles; the Australian Curriculum; state and territory teacher registration requirements (Teacher Registration Boards); standards and procedures for accreditation of initial teacher education programs; Framework for Teacher Registration; standards and procedures for registration of schools

      VET: Standards for Registered Training Organisations (RTOs) 2015; Standards for VET Regulators 2015; Standards for VET Accredited Courses 2012; standards and procedures for VET training packages

      Higher education: Higher Education Standards Framework (Threshold Standards) 2015.

As well as containing very specific requirements to maintain registration and operate, many of these frameworks contain broad references to adhering to ‘all relevant’ legislation and regulations[11]. Generally, this clause encompasses a broad set of requirements, which may include quality, workplace health and safety, consumer protection, and anti-discrimination legislation, but do not specifically name the Standards and may not provide sufficiently strong guidance on how to support their objectives.

These frameworks often require providers to adhere to the principles of access and equity, or assist educators to meet the specific learning needs of students with disability, but are not framed in reference to the Standards. Where providers offer support for students with disability, it is often based on sector-specific policies which include references to inclusion and diversity for equity groups generally or based on intrinsic beliefs around equity, rather than based around obligations under the Standards. The Standards are often a secondary consideration, if at all.

Additionally, the absence of reference or alignment to the Standards in these frameworks means regulatory bodies generally do not factor direct or indirect consideration of the Standards into their regulatory remit. Some regulatory authorities told the Review that they would have limited ability to take account of complaints or conciliation outcomes relating to compliance with the Standards.

A process of national policy and regulatory alignment with the Standards would support greater integration of the Standards in the education system and indirectly strengthen compliance with the Standards without introducing a new regulatory mechanism (such as a new independent body). It would have the effect of ensuring national and state regulators have regard to the Standards when undertaking their usual regulatory activity. Further, it would streamline arrangements for the education sector by incorporating existing legal obligations under the Standards into the education sector’s core frameworks and standards.

This alignment may be achieved by ensuring national frameworks and standards adequately reflect the obligations in, and objectives of, the Standards, in their policies and regulations. Consideration would need to be given to the various national and state frameworks and standards, plus related regulation and supporting policy and guidance material, to determine where opportunity exists to address gaps or strengthen content to support achievement of the objectives of the Standards.

For example, while the various frameworks and standards for school teachers already include requirements related to supporting students with disability and understanding relevant legislation, there has been clear and persistent feedback through this and other Reviews that teaching capability regarding students with disability needs to be strengthened. This suggests there remains opportunity – whether in some or all of the Australian Professional Standards for Teachers or teacher registration requirements or standards and procedures for accreditation of initial teacher education programs – to strengthen the requirements and processes to ensure new and existing teachers have the knowledge and skills they need to support access and participation of students with disability in line with the objectives of the Standards.

It is not intended that this alignment exercise would expand the remit or scope of the national and state frameworks and standards in question. It is also not intended that national and state regulators of education would directly regulate compliance with the Standards.

This alignment will require collaboration between the Australian Government and states and territories. Where possible, existing opportunities to review or update these frameworks and standards (and/or their supporting policy and guidance material) could be leveraged.

2.3.5 The Australian Government should leverage its funding as a mechanism for accountability

The Australian Government makes a significant financial contribution to the education system through direct payments to providers, payments to students, and payments to educational authorities to be distributed to individual institutions. Many Review participants called for the Australian Government to use its funding levers as a mechanism to either incentivise compliance through conditional funding arrangements or compel compliance through consequences to both organisations and individuals.

As with national standards and frameworks, Australian Government funding agreements include general requirements to comply with ‘all relevant’ Commonwealth and state and territory laws. Inclusion of a specific requirement to implement the Standards as a condition of funding would have the unintended consequence of shifting responsibility for implementation of the Standards away from those who deliver education. This is at odds with the distribution of responsibility for education delivery in Australia and those who are best placed to ensure implementation of the Standards.

Targeted use of Australian Government funding is more appropriate; it can be employed as a mechanism to support objectives such as increased transparency of information about students with disability and improved accountability of education authorities to the community.

To this end, it is proposed the Australian Government introduce a requirement that all education authorities make information publicly available on their website about the services and supports their schools provide for students with disability as a condition of Commonwealth school funding. The information on services and supports may be provided on a central website, with a view to individual school websites facilitating ready access of their school communities to this and any additional local information wherever possible. This measure would help to address issues raised through the Review about the need to proactively provide information to help empower and support students and parents.

2.3.6 Greater transparency of data and outcomes for students with disability was sought

A common concern raised by a variety of Review participants was the lack of data on the access, participation and outcomes of students with disability (whether at a provider, system or national level). This makes it difficult to fully understand the current situation and scrutinise issues of implementation and compliance with the Standards. To increase understanding of the experiences of students with disability, particularly school students, many organisations advocated for the mandatory and regular collection and release of information including:

      The number of complaints made under the Standards

      Instances of suspension, expulsion and restrictive practices

      Students who attend part-time only, particularly in the schooling sector

      The number of students in segregated settings

      Academic attainment and outcomes.

Disaggregated data was sought in order to understand the specific experiences of groups such as Aboriginal and Torres Strait Islander students with disability, CALD students with disability, and girls or women with disability.

Participants felt that not measuring these areas leads to a lack of action, and this lack of data was constraining the ability to improve the experience of students with disability.

It is proposed to develop a set of nationally consistent principles and practices on collection and public reporting of data on school students with disability to support assessment of the extent to which they are accessing and participating in education on the same basis as their peers. This work would take account of any privacy considerations and the definitional differences between jurisdictions.

2.3.7 Responsibility for progressing the recommendations

Given the responsibility for education delivery largely rests with states and territories, the Australian Government will need to work with states and territories to implement relevant recommendations of this Review. The Australian Government Minister for Education could seek the support of education and skills ministers in all jurisdictions to do so. Appropriate governance of the implementation of the Review’s recommendations will ensure progress is made given the cross-sector and cross-jurisdictional collaboration required.

Co-design with people with disability is a feature of several recommendations and needs to be considered upfront in the design of governance frameworks. The Australian Government will also consult with educators, education providers and state and territory education authorities in developing approaches to implementation of recommendations. Consideration of Aboriginal and Torres Strait Islander students with disability (and all groups experiencing intersectional disadvantage) will be factored into the implementation approach for all Review recommendations.

Implementation of the recommendations will require a staged approach with a first step being the development of resources and training materials and planning for a program of national regulatory alignment. The provision of resources, implementation of training and amendment of national regulatory standards and frameworks will be an important second stage. A further consolidation phase envisaged is consultation on the planned amendments to the Standards ahead of planning for the 2025 Review of the Standards. To increase transparency and accountability for ensuring the implementation of the recommendations, the Australian Government could commit to public annual reporting of progress against each of the recommendations. This will make clear to the community what actions have been taken, and where further work needs to be done.

2.4 Building awareness and capability in the early childhood education and care sector

A separate stream of consultations was undertaken in the ECEC context to consider parents’, carers’ and educators’ awareness, understanding and application of the DDA.

The Standards, while applicable to the majority of education services, including pre-schools and kindergartens, do not apply to ‘child-care providers’. As set out in section 1.2 of this report, the Standards provide additional clarity on the rights and obligations of students with disability and of education providers under the DDA.

Where the term ECEC is used, it covers child care providers and ECEC services.

2.4.1 All early childhood education and care services must comply
with the DDA

The DDA is Commonwealth legislation that has been in place for nearly 3 decades. Under the DDA, it is unlawful to discriminate against a person on the basis of disability. Section 22 of the DDA makes it unlawful for an education authority to refuse or fail to accept a person’s application for admission, or to make certain terms or conditions on the admission, that discriminate against the person on the grounds of their disability.

If an ECEC provider is not considered to be an education authority or education provider as defined in the DDA, they need to meet section 24 of the DDA. This section makes it unlawful for them as a provider of goods, services or facilities to refuse to provide those goods, services or facilities to someone because of their disability.

Both the 2010 and 2015 Reviews recommended considering extending the application of the Standards to child care providers. The 2015 Review found that the sector had undergone significant reforms which increasingly emphasised the educational purpose of ECEC services, and noted the exclusion of child care from the Standards appeared to be an anomaly.

The distinction made in the Standards between preschools/kindergartens and child care providers does not reflect the complex arrangements in place in the ECEC sector:

      There are a diverse range of service types offered by ECEC providers. These include preschools, kindergartens, centre based day care, family day care, in home care, outside school hours care (including for school aged children), and a range of other services

      There are jurisdictional differences in the settings in which preschool programs are delivered

      ECEC learning programs, including preschool programs, are delivered across these different settings in different ways (e.g. a centre based day care service may offer a preschool program).

To test the need and case for this recommendation in the 2020 context, the Review undertook a separate stream of consultation for child care parents, carers and educators, including the provision of a separate discussion paper and questionnaire. This stream was designed to test how well known and applied the DDA is in the ECEC sector, and whether the protections offered by the DDA were effectively engaged by families of children with disability accessing and participating in child care services. This enabled the Review to determine if there was sufficient evidence to suggest that providing further clarity to those using and educating within the sector would be of benefit to both families and providers.

The Australian Children’s Education and Care Authority (ACECQA) consulted with ECEC providers in parallel to the Review consultations and their findings have informed this section.

2.4.2 There is limited awareness and understanding of the DDA in the
ECEC sector

The Review found that, similar to the experiences of parents, carers and educators in other education sectors in respect of the Standards, there is a need to raise awareness of rights provided by the DDA. Responses to the ECEC questionnaire, backed up through consultation event responses, indicated that while many ECEC services had an awareness of the DDA, some participants had never heard of the DDA, or had heard of it, but had never read it or were unaware of its content.

Many parents and carers reported that they had not been directed to information about the DDA, nor made aware of their rights prescribed under the DDA when enrolling in child care. Where there was knowledge of the legislation, there was often confusion about how the DDA was applied and what it meant in practical terms in relation to their child. One ECEC webinar participant summarised it this way: “Little is understood about the DDA.”

There was strong support for awareness-raising about the DDA to be provided early in the lives of children with disability, and through a range of services and means. The provision of information which sets out the rights of parents and families and the obligations of child care providers and their educators was considered essential. The information, when provided, helped to equip both parents and carers and educators with critical knowledge which impacted the experiences of parents and carers trying to access and participate in ECEC services. Other suggestions for improvement included the sharing of information with other families who were in similar situations, through forums, webinars and Facebook groups, to learn from experiences and to better understand how to advocate for their child within a child care setting.

In relation to educators, some submissions suggested that the profile of the ECEC workforce contributed to educators’ low level of understanding about the DDA. Others cited a lack of resources and a lack of training (discussed in 2.4.6) which contributed to poor awareness and understanding of the DDA. Educators acknowledged that improvements in training would increase their awareness; however, they indicated better awareness of the DDA by themselves than they observed in parents and carers.

2.4.3 Transitions into and out of ECEC can be problematic and stressful for parents, carers, and their children

While most commentary during the Review was about the transition from ECEC to school, there was some evidence that even securing a place, where the family felt both welcome and confident that their child would be fully supported and well cared for, was a challenge for some families.

Overwhelmingly, however, the transition from child care to school was reported as the time of greatest stress and disruption for families and the children involved. This was attributed to a lack of awareness about the Standards and not knowing what level of support a school would provide. Families reported positive experiences where the transition was made over time, where information flowed between the child care service and the school, and where visits or excursions ahead of enrolment were encouraged. Strong partnerships between ECEC services and local schools were also recognised as critical by these families:

“Far from being a supportive process for the child and family, it was divisive, confrontational, blaming and devastating for all those involved. It took a very long time for the family to recover from the experience” (Parent/carer, parents and carers online discussion board)

2.4.4 Complaints processes are difficult to navigate, and parents and carers worry about repercussions

Similar to the findings across other education sectors in relation to the Standards, parents and carers reported difficulties in navigating formal complaints processes under the DDA. Many shared that there appear limited avenues for making a complaint, and that the fear of retribution was a major disincentive.

The response of families who faced challenges in securing a child care place or whose child had a poor experience in a centre was generally to seek a place with an alternate provider (to ‘shop around’) or to move to another centre, rather than make an official or formal complaint to the provider or to pursue an outcome through the legal system. The Review heard that, unlike in other education sectors which have mandated attendance and set catchment/priority enrolment areas in place (e.g. schooling), families were less likely to try to negotiate and attempt to resolve issues around support services for their child where they sensed unwillingness or a lack of support.

2.4.5 Communication is central to positive outcomes and must be two-way

The Review found children with disability tended to have positive experiences and better outcomes where parents and carers had been able to establish and maintain a good relationship with ECEC staff and educators. Consistent with other education sectors, the Review heard that parents and carers felt that the burden of communication most often rested with them.

Where poor communication existed, it became a barrier to timely and appropriate care and support, including access to a centre and having reasonable adjustments both agreed to and made by an ECEC service. For many, a lack of understanding by both parents and carers and ECEC services of the rights and obligations under the DDA resulted in parents and carers expressing the need to ‘shop around’ from service to service to secure a place where they felt appropriate care would be provided. Some parents and carers also suggested educators seemed too busy to make reasonable adjustments for their child.

Two issues raised by educators (and ECEC providers) included both the failure by some families to disclose the disability of a child at the time of admission, and a lack of diagnosis on entry to a service. Many parents and carers admitted to the practice of failing to disclose, noting they feared rejection of their child. Others shared that they had not received a formal diagnosis at time of admission. Where disability became known post admission, the Review found that families had good experiences in many instances and that the support needed for their child had been arranged by the ECEC service.

Further, participants consistently identified the importance of strong consultation between services, educators, parents and carers in the process of identifying the needs of the child and making a reasonable adjustment. Stronger and more consistent consultation processes are likely to benefit families accessing services in this sector.

2.4.6 The capability of many ECEC educators could be improved

The Review found that many services had a poor understanding of the DDA and what it meant for service provision. Many contributors called for more highly qualified and trained ECEC staff. As one disability body reflected, “Parents in the early years need a confident, disability literate workforce to support them navigate”. This was particularly evident in relation to making reasonable adjustments, as many educators reported having low confidence and limited or no experience, however other educators expressed confidence in these skills. As one early childhood educator noted, “I 100 per cent believe that our sector needs to be better trained from the get-go in terms of inclusive practice and understanding how to care for children with additional needs” (Educator, ECEC educators focus group).

Awareness and understanding of the DDA could be improved through changes to ECEC pre-service training to improve entry-level knowledge prior to joining the workforce. For those working in the early childhood context, more support and skill development through the provision of resources and training were suggested by many to be threshold issues for ECEC educators. To support the full range of families accessing services, this should include information on working with families from a range of backgrounds, including Aboriginal and Torres Strait Islander families and families from culturally and linguistically diverse (CALD) backgrounds. Where possible, the Australian Government will seek to influence the requirements in qualifications for early childhood educators to ensure awareness and understanding of the DDA and its application is clear .

2.4.7 Positive service leadership is critical and underpins good experiences

The Review found that leadership, as in other settings, is important in setting the tone within an ECEC service. Many contributors to the Review spoke about their negative experiences in terms of accessing child care settings, negotiating appropriate adjustments and establishing meaningful programs for their children with disability. Put by one parent:

“The daycare staff told me I was lucky to find someone willing to look after my child.” (Parent/carer, parents and carers focus group)

Other parents and carers reported experiencing ‘gatekeeping’ by the Centre Director or front office staff, citing comments from ECEC services about their inability to provide appropriate supports for their child. They further reported their perception that ECEC services used excuses such as long waiting lists or ‘being full’ as a means of discouraging parents and carers from submitting an application. The Review also heard from advocacy services of instances where staff felt they were prevented by the Centre Director from making what they considered to be a reasonable adjustment for a child with disability in their care.

Where good experiences were reported, this often stemmed from the positive and supportive attitude of and environment established by the Centre Director or leader:

“I do get frustrated that other services don’t step up and are not more welcoming and more inclusionary, but then I think also you need to be in a certain circumstance where you have the knowledge, you have the training, you know what hoops to jump through, and you know you have the staff that can back you up when you do include a child.“ (Centre director, ECEC educators focus group)

The 2018 changes to the Priority of Access Guidelines with the replacement of the Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Determination 2000 by the Child Care Package may have also impacted on the readiness of some ECEC providers to provide placements for children with disability. These changes meant that ECEC providers are not legally required to prioritise children with disability when filling centre vacancies. Irrespective of this, under the DDA, ECEC providers are required to give consideration to an application for a place from a parent of a child with disability on the same basis as a child without disability.

2.4.8 Clarification of how the NDIS works in ECEC would help

The Review heard that families can be unaware of the supports available to them through the National Disability Insurance Scheme (NDIS). ECEC services often lack capacity to identify a child’s needs and facilitate additional supports.

Further, parents, carers and educators reported confusion about the roles and responsibilities between educators/education providers and NDIS providers. This confusion could translate to a delay in obtaining or putting in place appropriate supports for children with disability.

A further issue was that of having specialist supports funded by the NDIS, not the centre, requiring therapists and other support staff to work within centres to deliver that support, which needed the cooperation of the centre. Parents and carers also raised the inconsistencies in referencing of critical requirements for government support, in particular, definitions of disability:

“The ways in which NDIS funding can (or rather cannot) be used to support education needs a review. The Standards could play a part in this.” (Education professionals and academics, online discussion board).

The Review heard that given the complex interface between the NDIS and the education sector (ECEC in particular) further clarification of the roles and responsibilities of service systems and the NDIS is required, coupled with communication of these boundaries to all ECEC providers and parents and carers.

2.4.9 Role of the Inclusion Support Program in ECEC

The Inclusion Support Program (ISP) is the primary Australian Government mechanism for supporting inclusive access and participation by children with disability in ECEC services. It is designed to assist ECEC services to include children with additional needs by providing support, in the form of practical and tailored advice and strategies on effective inclusive practice from contracted Inclusion Agencies, as well as funding to address more challenging inclusion barriers. The program provides support for eligible ECEC services to build their capacity and capability to include children with additional needs in mainstream services, providing them with an opportunity to learn and develop alongside their typically developing peers.

Submissions which discussed ISP called for broader eligibility criteria to increase the number of children with disability accessing the program. Some ECEC providers were concerned about the level of support they received from their ISP team, including knowledge of the program. Providers shared concerns with the ISP platform itself, citing it as unstable, not intuitive and hard to navigate. A number of submissions indicated concern that ISP does not support or provide for the professional development of centre staff to increase their capability in supporting children with complex needs, nor release time to attend meetings with allied health professionals about management of individual children, thus diminishing their ability to support children with disability.

2.4.10 Early childhood education and care policies and regulations should be aligned to the DDA

Similar to the issues raised in other sectors about reflection of the Standards in relevant national and state frameworks, there was strong support for ensuring national alignment of early childhood education and care policies and regulations to the DDA. Alignment would streamline arrangements for the ECEC sector by incorporating existing legal obligations under the DDA into relevant national and state standards and frameworks. A key national framework is the National Quality Framework (NQF). Its important role in ECEC was clearly articulated in consultations. The NQF is well known, well understood and provides a national approach to regulation, assessment and quality improvement for ECEC and outside school hours care services across Australia.

As with the proposed approach to national policy and regulatory alignment in schooling, VET and higher education outlined in 2.3.4, a process of alignment of national and state ECEC policies and regulations with the DDA would support greater integration of the obligations under the DDA in ECEC and indirectly strengthen compliance with the DDA. It would have the effect of ensuring ECEC regulators take account of the requirements of the DDA as part of their usual regulatory activity.

This alignment may be achieved by ensuring ECEC frameworks and standards adequately reflect the obligations in, and objectives of, the DDA. Consideration would need to be given to the NQF and related national and state regulation and supporting policy and guidance material to determine where opportunity exists to address gaps or strengthen content to support achievement of the objectives of the Standards.

As in 2.3.4, it is not intended that this alignment exercise would expand the remit or scope of the NQF or other frameworks and standards. It is also not intended that ECEC regulators would directly regulate compliance with the DDA.

This alignment will require collaboration between the Australian Government and states and territories. Where possible, existing opportunities to review or update these frameworks and standards (and/or their supporting policy and guidance material) could be leveraged.

2.4.11 Some providers and educators incorrectly believed the Standards already apply to child care provision

There was evidence that some ECEC educators and providers believe that the Standards currently applied to child care providers, as distinct from preschools and kindergartens. Put by one submission:

 “In Early Childhood settings there is confusion over whether the Standards even apply to 3 and 4 year old kinder” (Association for Children with Disability submission). In another, there was an assumption that the Standards applied to all settings, stating their view that there was “unanimous agreement that the professional development needs of early childhood educators in relation to the Standards were not being met” (Australian Education Union submission).

This belief impacted on the views and behaviours of ECEC providers and educators in respect of providing access to ECEC services for children with disability, and on the treatment of those children when participating in services. This was most evident in respect of the provision of reasonable adjustments to allow children with disability to fully engage with the early childhood education programs offered to all children. One large service provider had the following to say about this matter illustrating this misunderstanding:

“The Standards provide clear detail about an [ECEC] provider’s obligation to make ‘reasonable adjustments’ to assist a child with disability to participate in educational programs.”

2.4.12 Views on extending the Standards to child care

The question of whether the Standards should be extended to child care providers was not directly asked during this Review, given the need to establish a baseline understanding of participants’ knowledge of the rights and the obligations which already existed under the DDA. Nonetheless, a number of participants in Review consultations, including the ACECQA engagement with ECEC providers, raised the issue of the extension of the Standards to child care and, in the main, supported such an extension. There was no view put to the Review that the Standards should not be extended to child care.

Where submissions suggested extending the Standards, it was often based on no or a limited understanding of the rights and obligations afforded by the DDA. Where respondents called for the extension of the Standards to child care providers, it was most often based on the mistaken assumption that extension of the Standards to child care would extend further rights to families of children with disability and to improve access to services; in fact, the DDA already provides these rights.

2.4.13 Foundational work is required ahead of amending the Standards in 2023

Children with disability must be able to access and participate in ECEC on the same basis as children without disability. There is strong evidence that the early years of a child’s life have a profound impact on their future cognitive, social, emotional and physical development. The skills and abilities acquired in early childhood are fundamental to a person’s success and wellbeing later in life.

As noted in previous reviews, the exclusion of child care providers from the Standards appears to be anomalous and out of step with reforms that have increasingly emphasised the educational purpose of ECEC services. Further, the distinction made in the Standards between preschool/kindergarten and child care is imprecise and does not reflect the diversity of service types and the range of early education and care learning programs offered by ECEC providers.

Current arrangements whereby the Standards apply only to preschool and kindergarten create the mistaken impression that the rights of children with disability in relation to education in a child care setting are somehow different to those in a preschool/kindergarten setting. While extending the Standards to incorporate child care would not, in itself, alter or increase the existing rights of children with disability or obligations of ECEC providers, the current exclusion of child care from the Standards contributes to a poorer understanding of rights and obligations in an ECEC context.

It is proposed that an important first step is to undertake a foundational body of work to strengthen understanding of existing rights and obligations under the DDA as they apply in the ECEC sector. This includes developing resources and information products to improve parents and carers’ understanding of the DDA as it relates to ECEC, as well as further training and resources to support ECEC services to fulfil their obligations. This should be underpinned by collaboration with states and territories to pursue amendments to the NQF to align with the DDA.

This body of work should be completed ahead of consulting on draft amendments to the Standards in 2023 in relation to the ECEC sector.

Appendices

Appendix A – 2015 Review recommendations and actions taken to date

The 2015 Review of the Disability Standards for Education 2005 (the Standards) produced 14 recommendations. Table 1 outlines these recommendations and actions taken following this review.

Table 1: 2015 Review recommendations and actions taken to date

Appendix B – Review Methodology

The Review was conducted in 3 stages:

Stage 1.  Scoping and design

Stage 2.  Public consultation

Stage 3.  Testing and refining

Stage 1: Scoping and Design

The scoping and design of the Review was informed by an initial round of consultations that helped shape the overall Review approach, including the Terms of Reference and the consultation strategy.

Australian Human Rights Commission

The Australian Human Rights Commission’s Disability Discrimination Commissioner, Dr Ben Gauntlett, provided early advice on the approach to the Review, and has continued to inform the Review throughout 2020. At the onset of the COVID-19 pandemic, Dr Gauntlett provided advice on how to respectfully proceed with the Review with consideration of the pressure the COVID-19 pandemic placed on the disability sector. Dr Gauntlett also contributed to 2 public webinars, consultations with peak disability bodies, and facilitated the Young People’s Advisory Group meetings.

One-on-one consultations with peak bodies

One-on-one virtual discussions were held with approximately 20 key peak bodies representing people with disability and educators. These meetings allowed the department to hear peak bodies’ views on approaches to public consultation, with consideration given to the impact of COVID-19 pandemic restrictions and how this would affect the capacity and ability of people with disability and their support networks to contribute. The peak bodies were also asked about key areas of interest for the Review, and how the department could best connect with hard-to-reach individuals and communities.

State and territory reference group

In recognition of the primary role states and territories have in delivering education, a reference group comprising state and territory senior officials was established. Members were nominated by the Australian Education Senior Officials Committee (AESOC) and the Skills Senior Officials’ Network (SSON). The group was chaired by the Australian Government. Regular bilateral and multilateral meetings were held throughout 2020.

Australian Government agencies

The department worked closely with the Attorney-General’s Department and the National Indigenous Australians Agency, and consulted Australian Government agencies responsible for concurrent and upcoming reviews in the sector, including:

      The Department of Social Services (National Disability Strategy) 

      The Department of Infrastructure, Transport, Regional Development and Communications (the Disability Standards for Accessible Public Transport 2002)

      The Department of Industry, Science, Energy and Resources (the Disability (Access to Premises ‑ Buildings) Standards 2010)

Advice on consultation with Aboriginal and Torres Strait Islander people

The National Indigenous Australians Agency, the First Peoples Disability Network Australia and the National Aboriginal and Torres Strait Islander Principals Association were consulted on how to best engage Aboriginal and Torres Strait Islander communities, families and students with disability, and on issues of particular relevance to these communities.

Stage 2: Public Consultation

Public consultations for the Review (Stage 2) were held from 16 July to 25 September 2020. During this period, the public were able to engage with and respond to the Review through formal submissions, webinars, focus groups, discussion boards, individual interviews, through several community visits and an online questionnaire. Throughout the consultation period, the Review was advertised widely through a range of digital and online channels, as well as through states and territories and by peak disability organisations.

The Social Deck

The department engaged a supplier, The Social Deck, to provide technical and logistical support for the consultation process. The Social Deck provided advice on the consultation design, conducted the consultation events in partnership with the department and key partner organisations, and provided the department with detailed reports and, where appropriate, transcripts. It also designed, built and hosted the online Consultation Hub.

Consultation Hub

The accessible online Consultation Hub was developed to house all key documents and information related to the Review and outline the ways that individuals and organisations could get involved. A total of 18,565 unique visitors accessed the Hub throughout the consultation period.

Discussion papers

The department released a discussion paper on 16 July 2020 that outlined the purpose and operation of the Standards, the Terms of Reference for the Review, and included a list of questions and discussion prompts for readers to consider.

A second discussion paper focused on early childhood education and care was released on 21 August 2020. This paper was developed in response to previous recommendations to consider extending the application of the Standards to child care providers. Its purpose was to assist the department to examine the extent to which families, educators and providers in this sector know about, understand and comply with their existing rights and responsibilities under the Disability Discrimination Act 1992.

To ensure that the Review was accessible and inclusive, the discussion papers were translated into Easy Read, Auslan and 11 community languages.

Questionnaires

To provide an alternative means of written contribution to the formal submission process, the department developed an online questionnaire which was available on the Consultation Hub. The questionnaire asked questions based on the discussion paper, and was targeted primarily at community members, parents, carers, educators, and others who were unlikely to make a formal submission. It was designed to be an accessible, flexible mode of participation in the Review. Individual stakeholders were still able to make a formal submission as well as complete the questionnaire.

The department developed a separate questionnaire to support engagement with the discussion paper on early childhood education and care.

Consultation events

National interactive webinars focusing on schools, educators, tertiary education and early childhood education and care took place in July and August 2020. The webinars featured guest speakers and hosts, including Dr Ben Gauntlett; former Disability Discrimination Commissioner, Mr Graeme Innes AM; Biripi woman and principal of Briar Road Public School, Ms Tammy Anderson; President of the Australian Primary Principals Association, Mr Malcolm Elliot; and President of the Australian Tertiary Education Network on Disability, Mr Anthony Gartner.

Audio-visual material was provided to enhance engagement and encourage a focus on student experiences. All webinars were made accessible with closed captioning services and live Auslan interpretation.

Eighteen focus groups and 4 discussion boards were held with targeted groups and provided opportunities to explore diverse experiences in greater depth. Twenty-one in-depth telephone interviews were used to access the experience of people in remote or regional locations, as well as other people who preferred to engage in this way. Participants were invited to express interest in participation through the Consultation Hub, and partner organisations were asked to promote and suggest participants.

Young People’s Advisory Group

A Young People’s Advisory Group was established as part of the Review in order to hear directly from young people with disability about their experiences in education. Participants were nominated by the state and territory reference group and disability peak organisations. Eleven young people with disability aged between 15 to 25 years from across Australia participated in these consultation meetings, chaired by Dr Ben Gauntlett.

Consultations with organisations and agencies

In addition to public facing consultation events, the department engaged with a range of national agencies, regulators and representatives of non-government education providers. These discussions helped the department to understand how the Standards are being implemented and how the Standards intersect with the broader regulatory architecture that governs different education sectors.

Additionally, 2 roundtable discussions were held, each attended by 20 national peak bodies representing people with disability and chaired by Mr Graeme Innes AM. An additional roundtable discussion was held with 6 peak bodies representing school principals, chaired by the department.

Indigenous Education Consultative Bodies

The department met with Indigenous Education Consultative Bodies on 17 August 2020 to discuss the experiences of Aboriginal and Torres Strait Islander students with disability in education. A second meeting took place on 5 November 2020 to discuss the findings from Review consultations, particularly those regarding the experiences of Aboriginal and Torres Strait Islander students with disability.

ACECQA Consultations

After undertaking a mapping exercise exploring the applicability of the Standards under the National Quality Framework, the Australian Children’s Education and Care Quality Authority (ACECQA) was tasked by Education Council to explore the possible implications of, and options for, extending the Standards to child care providers. ACECQA’s consultations targeted approved providers, peak bodies, Inclusion Agencies and Inclusion Support professionals. These consultations ran in parallel with this Review, and the final report developed by ACECQA informed the findings and recommendations in this report.

A detailed list of consultation events can be found in Appendix C.

Consultation Design

The following table details the feedback the department received through its initial scoping discussions, and how these considerations were reflected in the consultation process.

Stage 3: Testing and Refining

Analysis of all consultation input occurred in October and November 2020. Draft findings were presented to:

      State and territory governments through the Commonwealth-chaired reference group

      The Young People’s Advisory Group

      The department’s Indigenous Education Consultative Bodies

      National disability peak bodies

      National school principal associations

      Australian Government agencies, including: the Attorney-General’s Department, the Department of the Prime Minister and Cabinet, the Department of Social Services, and the National Indigenous Australians Agency.

These stakeholders provided feedback which informed the final report and recommendations.

Limitations of methodology

While the department sought to make the Review as accessible and comprehensive as possible, there were limitations on what the Review could achieve. The COVID-19 pandemic posed challenges for the Review, namely limiting the opportunity for face-to-face consultation. The department is also aware that consultation fatigue from concurrent reviews and inquiries, including Disability Royal Commission hearings and public consultations for a new National Disability Strategy, may have affected stakeholders’ capacity to engage and participate in the Review. An extended consultation period was provided to support wide participation, noting this was constrained by the legislative requirement under the Standards to complete the Review in 2020.

Given the scope of the Review outlined in the Terms of Reference, the Review was unable to address and consider every issue raised throughout consultation events and formal submissions. The department heard about a range of issues that affect the ability of people with disability to access and participate in education, including issues with public transport and NDIS services and funding that, while out of scope, will inform broader policy thinking.

Appendix C – Consultation activities

Public webinars

Small group consultations

Focus groups

Young People’s Advisory Group

Online discussion boards

Consultation with Aboriginal and Torres Strait Islander Communities

In conjunction with FPDN, 3 face-to-face events with Aboriginal and Torres Strait Islander students with disability and their families were held:

Two meetings were held with the Indigenous Education Consultative Bodies on 17 August and
5 November 2020.

In addition to the focus groups, online discussion boards and face-to-face events, several telephone interviews were held where participants asked to contribute in that way.

Peak body consultations

Between April and June 2020, the department held one-on-one initial consultations with the following peak disability bodies:

In addition to this, there was a roundtable discussion held on 7 August 2020 attended by 23 participants from the following 20 organisations:

There was a follow up roundtable discussion held on 6 November 2020 attended by 22 participants from the following 20 organisations:

Consultations with sector representatives

One-on-one discussions were held with the following organisations:

Consultations with Peak Principal Associations

A roundtable discussion was held on 2 November 2020 with the following associations:

Appendix D – Submissions

The 2020 Review of the Disability Standards for Education 2005 received a total of 179 submissions. Those who gave permission for their submission to be published are listed below.

Submissions received

Appendix E – References

Australian Bureau of Statistics (2019), 2018 Survey of Disability, Ageing and Carers Australia (Cat 4430.0)

Australian Human Rights Commission (2012) Federal Discrimination Law: Chapter 5 The Disability Discrimination Act

Australian Institute for Teaching and School Leadership (February 2011), Australian Professional Standards for Teachers

Australian Institute for Teaching and School Leadership (2014), Australian Professional Standard for Principals

Avery, S. (2018), Culture is Inclusion: A narrative of Aboriginal and Torres Strait Islander people with disability

Commonwealth of Australia (1992), Disability Discrimination Act 1992

Commonwealth of Australia (2005), Disability Standards for Education (2005) plus Guidance Notes

Commonwealth of Australia (2015), Higher Education Standards Framework (Threshold Standards) 2015

Commonwealth of Australia (2015), Standards for Registered Training Organisations (RTOs) 2015

Education Council (December 2019), Alice Springs (Mparntwe) Education Declaration

National Report on Schooling in Australia (2020), School Students with Disability data portal

Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (October 2020), Interim Report

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2020), Transcript – 6 November 2019, Judith Fenoglio, Principal of Ingham State High School

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2020), Transcript Day 3 – Public hearing 7, Brisbane, Dr Kate de Bruin, Monash University

Sklavos v Australasian College of Dermatologists (2017) 247 ALR 78

Teacher Education Ministerial Advisory Group (TEMAG) Report (2014) Action Now: Classroom Ready Teachers

United Nations (2006) United Nations Convention on the Rights of Persons with Disabilities

Watts v Australian Postal Corporation (2014) 311 ALR 680

 Appendix F – List of terms

[1] Education Council (December 2019), Alice Springs (Mparntwe) Education Declaration

[2] See, for example, Avery, S. (2018), Culture is Inclusion: A narrative of Aboriginal and Torres Strait Islander people with disability

[3] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability: Interim Report (October 2020), p. 447

[4] National Disability Insurance Scheme (Supports for Participants) Rules 2013, rule 7.13

[5] Available at https://humanrights.gov.au/our-work/complaint-information-service/complaint-process-complaints-about-sex-racedisability-and

[6] Available at https://humanrights.gov.au/complaints/complaint-guides/conciliation-how-it-works

[7] For example Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92; Sklavos v Australasian College of Dermatologists [2017] 247 ALR 78; Watts v Australian Postal Corporation (2014) 311 ALR 680.

[8] For example, the DDA refers to ‘reasonable adjustments’ while the CRPD refers to ‘reasonable accommodations’.

[9] Available at https://disability.royalcommission.gov.au/publications/australian-government-position-paper-uncrpd

[10] Disability Standards for Education Guidance Notes

[11] An example of this is the Standards for Registered Training Organisations (RTOs) 2015, which includes a provision that “[t]he RTO complies with Commonwealth, State and Territory legislation and regulatory requirements relevant to its operations” to also be compliant with the Standards for RTOs.

Attachment B: Impact Analysis Equivalent Supplementary Analysis
Disability Standards for Education Amendments

Introduction

Education is fundamental to all Australians being able to reach their potential and ambitions for the future. Early childhood education and care, quality schooling and accessible higher education have positive impacts throughout a person’s life – for individuals, their families, our communities and the economy.[1]

The Department of Education supports the Australian Government’s commitment to meeting the lifelong learning needs of all Australians. The department is focused on raising standards and strengthening accountability across the education and training sectors and recognises that Australia’s future depends on every child and student gaining the knowledge, skills, and values needed for a fulfilling and productive life.

The Disability Discrimination Act 1992 (Cth) is a law that protects Australians from discrimination based on disability. The Disability Discrimination Act sets out the types of actions that are illegal disability discrimination. This includes discrimination within education and training and discrimination in the provision of goods and services.

The Disability Standards for Education 2005 (the Standards) were established in 2005 to clarify the obligations of Australian education providers under the Disability Discrimination Act. The Standards aim to provide sufficient flexibility and guidance to education providers to practically fulfil their obligations under the Disability Discrimination Act. The Standards do not apply new obligations on education providers.

The Standards set out what an education provider must do to not discriminate based on a student’s disability. This is achieved primarily through:

•      consultation with children with disability and their families

•      making reasonable adjustments; and

•      elimination of harassment and victimisation.

By following the Standards, providers comply with the Disability Discrimination Act. In this way, the Standards make it easier for providers to understand what they must do under the law.

Currently, early childhood education and care services (ECEC services) must follow the Disability Discrimination Act. They must not discriminate against children, their families or others because of disability and must make reasonable adjustments for children with disability. Currently, the Standards apply to kindergartens and preschools that are educational institutions but do not specifically cover other types of ECEC services.

Certifying the 2020 Review of the Standards with Supplementary Analysis

Five yearly reviews of the Standards are in place to ensure the Standards reflect the current and future needs of children and students with disability to access and participate in education on the same basis as students without disability. The Australian Government undertook the third review in 2020.[2] The 2020 Review recommended including ECEC services in the Standards[3]. The recommendation was:

• That the Australian Government Minister Education build early childhood education and care sector awareness and capability regarding the Disability Discrimination Act 1992 by developing information products for parents and carers.

This part of the recommendation was completed in June 2023.

• By 2023, the Australian Government will prepare draft amendments to the Standards to incorporate ECEC for sector consultation.

This part of the recommendation is the subject of this Supplementary Analysis report.

The Department has certified the 2020 Review as having undertaken a process and analysis equivalent to an Impact Analysis for making the amendments to the Standards.

equivalent to an Impact Analysis for making the amendments to the Standards.

This Supplementary Analysis examines the impacts of maintaining the status quo (Option 1) and two proposed options (Options 2 and 3) to expand the scope of the Standards to include ECEC services as recommended by the 2020 Review.

• Option 1: Maintain the current scope of the Standards.
• Option 2: Amend the Standards to include ECEC services that are legally required to deliver an education program based on an approved learning framework to children under 13 years of age.
• Option 3: Amend the Standards to include all ECEC services that provide any form of care to children under 13 years of age.

The analysis is informed by consultations held since 2021. This includes consultation on Exposure Draft of proposed amendments[4] undertaken from 31 January to 28 February 2025 and an independent analysis of costs and benefits. The Supplementary Analysis report responds to:

Question 4 - What is the likely net benefit of each option to amend the Standards?

Question 5 - Who did you consult and how did you incorporate their feedback?

Question 6 - What is the best option from those considered and how will it be implemented?

Question 7 - How will you evaluate your chosen option?

Option 2 has been identified as the preferred option: ECEC services that by law must deliver an education program based on an approved learning framework are most suited for inclusion in the Standards. Including ECEC services in the Standards achieves the following aims:

•      make the obligations of ECEC services for children and students with disability consistent across the education sector

•      make it clear in the Standards there is no difference between the rights of children and young people with disability in preschool or kindergarten and other ECEC services that deliver education programs

•      make it clear for families and carers what the rights of children and students are and how ECEC services must support children and young people with disability.

The Standards would apply to the educational early childhood service providers in the same way they apply to educational institutions, educational authorities and education providers. The Standards would apply when children and young people enrol in, or apply to enrol in, educational early childhood services, in the same way they apply to students enrolled in, or applying to enrol in other educational institutions. Further detail on the assessment outcome is provided on page 23.

Background

The early childhood education and care sector

The early childhood education and care (ECEC) sector aims to provide all children who attend an education and care service with high-quality, accessible, equitable, and affordable education and care, to support education and development outcomes and support parents’ and carers’ workforce participation.

The ECEC sector consists of a broad mix of service types and organisational structures catering for children under 13-years old[5], including services such as centre based care, family day care, vacation care, preschool, kindergarten and outside school hours care. As of 1 January 2025, approximately 7,200 approved providers[6] operated 17,842 National Quality Framework (NQF) approved ECEC services across Australia.[7] Seventy-nine per cent of approved providers operate a single ECEC service (designated as a ‘small’ provider), while only 1% of providers operate more than 25 services (designated a ‘large’ provider).

There are also other service types that are not regulated under the NQF but may, or may not, be regulated under jurisdiction-based legislation. These include, occasional care, mobile preschools, playschools, some vacation care, crèches and some in home care services. There are also a small number of services currently regulated by the Australian Government that are excluded from the definition of an ‘education and care service’ and are not within scope of the NQF, coming under Minister’s Rules. These include a small number of in home care services, and several former Budget Based Funded services and former Indigenous Advancement Strategy funded services predominantly located in the Northern Territory (NT) and South Australia (SA).

The legislation and ECEC

ECEC services must follow the Disability Discrimination Act, which prohibits discrimination against children, families, or others based on disability. ECEC services must also make reasonable adjustments to ensure children with disability can access and participate fully in their programs on the same basis as children without disability.

Reasonable adjustments may include changes to the physical environment, modifications to the program or teaching style, redesigning activities, or adapting the use of resources. For example, changing the routine to be more flexible with fewer transitions throughout the day, using resources like sensory toys to support a child to feel calm and focused, moving equipment and resources to a lower height, or using a visual timetable. The goal is to create inclusive settings that support every child’s learning and development.[8]

Currently, education providers covered by the Standards include preschools (including kindergartens), government and non-government schools, vocational education and training providers and higher education institutions, including universities.

The key objective of the Standards is to establish processes and structures that enable students with disability to access and participate in education on the same basis as students without disability. This means that a student or prospective student with disability is given opportunities and choices in education which are comparable to those for students without disability.

The Standards establish standards for enrolment, participation, curriculum (its development, accreditation, and delivery), student support services, and the elimination of harassment and victimisation. Each part of the Standards sets out the rights of students with disability (including prospective students) to help people understand what is fair and reasonable under the Standards, and the legal obligations or responsibilities of education providers.

The 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 the Standards for harassment and victimisation.

Why are changes to the Standards being considered?

Since the Standards were introduced in 2005, there have been reforms to improve the quality of education in ECEC. These reforms mean that, like kindergartens and preschools, most ECEC services now provide an education program, and most must do so by law.

This change to the Standards has been suggested by the sector for some time:

•      In the 2010 and 2015 reviews of the Standards, stakeholders suggested that ECEC be included in the Standards.

•      The Productivity Commission’s Inquiry Report (2024) – A path to universal early childhood education and care[9] - recommended the Australian Government amend as soon as possible the Standards to cover the ECEC sector.

•      Australia’s Disability Strategy 2021-2031, Early Childhood Targeted Action Plan (Action 2.2) includes the extension of the Standards to include ECEC.[10]

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Disability Royal Commission) highlighted the importance of inclusive education and focused on the link between inclusive education and an inclusive society. The Commission advocated for improved access to ECEC services for children with disability.[11]

Likely net benefit of options

Question 4 – What is the likely net benefit of each option?

This supplementary analysis examines the impacts of maintaining the status quo (Option 1) and two proposed options (Options 2 and 3) to include ECEC services in the Standards. A qualitative approach has been used, as accurately quantifying the costs and benefits is challenging due to the complexity and diversity of the ECEC sector.

The services proposed for inclusion operate under varied delivery models, meaning costs and benefits will differ across providers. Key challenges include the localised nature of childcare, the wide range of provider types, and the differing needs of families—factors that make a uniform, quantitative analysis impractical.

It is also difficult to separate the costs and benefits of the Standards from those already required under the Disability Discrimination Act. Many ECEC services already invest in meeting these legal obligations, as well as other inclusive education requirements under frameworks like the National Quality Framework. This makes it hard to determine the additional impact of the Standards.

Providers may respond to policy changes in different ways, leading to varied and sometimes unexpected outcomes. For example, the effect on administrative workload may depend on the size and management structure of each service. Additionally, parental choice—often based on availability and informal perceptions of quality—adds another layer of complexity to the analysis.

This impact analysis is based on a commissioned literature review (Appendix 1),[12] public consultation as part of the 2020 Review of the Standards, limited consultation with state and territory education and disability peaks (2021-2023), public consultation on an amendments exposure draft (January-February 2025) , and from other public inquiries such as the Productivity’s Commission’s 2024 ECEC inquiry and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

Table 1 summarises the identified costs and benefits of the options (Options 2 and 3) above the Disability Discrimination Act baseline requirements. The Disability Discrimination Act baseline compliance costs would include costs in making reasonable adjustments, maintaining appropriate staffing levels and capabilities and the provision of resources or modifications to the learning program.

Table 1. Summary of Costs and Benefits 

Table 2 presents the quantitative net-benefit comparing the options (Options 2 and 3) to amend the Standards, using a multi-criteria analysis (MCA). The MCA uses a sliding scale for scoring impacts on stakeholders ranging from:

•      -3  largely adverse

•      -2 moderately adverse

•      -1  slightly adverse

•      -0 neutral

•      +1 slightly beneficial

•      +2 moderately beneficial

•      +3 largely beneficial

The MCA ratings indicate that maintaining the status quo (Option 1) is likely to result in a net benefit of -2. Although ECEC services are likely to experience a neutral impact, the adverse effects on parents, carers and children with disability contribute to an overall negative net benefit to stakeholders.

In contrast, Option 2 is projected to yield a net benefit of +3 in the MCA, while Option 3 is expected to result in a net benefit of +1. Given its stronger positive impacts on families, carers and children with disability – and its positive effect on ECEC services – Option 2 is the preferred option.

Option 3 has additional policy implications for the sector that affect their application, as described on page 17.

Table 2. Net Benefit Multi-Criteria Analysis 

Impacts of each option

This section outlines the costs and benefits associated with each option. It outlines the effects of changes from Options 1 to 3 on families, carers and children with disability as well as the impacts on ECEC services.

Option 1: Status quo

The status quo option would be to continue to promote awareness and understanding of the existing expectations and obligations under the Disability Discrimination Act by promoting existing guidance and available training materials.

Parents, carers and children with disability

Maintaining the status quo offers limited benefit to children with disability and their families. There are examples of ECEC services that meet their Disability Discrimination Act obligations well and provide support for children with disability. However, while some ECEC services meet their legal obligations and provide effective support, some families of children with disability face negative experiences in ECEC. The status quo would continue the gap and leave inconsistent obligations across the ECEC sector unresolved, meaning that there would continue to be dissatisfaction and poor experiences for parents and carers of children with disability.

The cost of maintaining the status quo is the continued exclusion of children with disability, developmental delays, or other specific needs from ECEC services—could reinforcing longstanding negative experiences for families and carers. PC Inquiry participants said that children with disability, developmental delay or other specific needs can be excluded from ECEC services.[13]

Families in the public consultation said that children with disability should be included in early childhood education and care settings on the same basis as children without disability. It was suggested that support to families would be welcomed.

Public consultation and reports in the Productivity Commission’s 2024 ECEC Inquiry Report showed that some ECEC services discouraged enrolment or attendance of children with disability, citing funding and time constraints.[14] Families in the public consultation also reported difficulties accessing outside school hours care, which negatively impacted workforce participation.

Based on the above likely impacts, it is reasonable to expect that there are likely to be adverse impacts to children with disability and parents and carers. This results in a scoring of -2 in the MCA.

ECEC services

The status quo option would be to continue to promote awareness and understanding of the existing expectations and obligations under the Disability Discrimination Act by promoting existing guidance and available training materials as outlined in Appendix 2.

Under the status quo, no additional regulatory, administrative or compliance costs are borne by ECEC services. Services and providers would continue to incur the baseline costs and benefits of their existing obligations under the Disability Discrimination Act including developing and monitoring policy and undertaking professional learning.

Community organisations

Disability advocacy organisations provide support to families and carers of students with disability. Under the status quo option, the role of advocacy organisations will not change. They will continue to manage complaints or advocacy opportunities and will not require any additional learning under the Disability Discrimination Act. This results in a scoring of 0 in the MCA for Option 1.

As the status quo is unlikely to result in any noticeable impacts. This results in a scoring of 0 in the MCA.

Options 2 and 3: Including ECEC services in the Standards

This section is about including ECEC services in a general nature in the Standards. It includes costs and benefits associated with any inclusion of ECEC services across Options 2 and 3 for families and carers of children with disability and ECEC services.

Families, carers and children with disability

Research shows that improved outcomes for children with disability can be achieved through better resourcing and professional learning. Amending the Standards would raise the profile of children with disability and drive momentum for ECEC services to invest in educator capability—leading to a stronger workforce and better outcomes for children with disability.

Parents and caregivers in the public consultation commented that the obligations for early childhood education and care services to support children with disability would be more visible, which would help improve access to and the delivery of services for children with disability.

The literature review and public consultation highlighted low awareness of the Standards as a key issue in ECEC settings. Greater awareness is linked to stronger advocacy by young people with disability and their families, leading to improved educational and social outcomes.

A significant body of research links the inclusion of children and young people with disability in ECEC to these improved outcomes. These gains are most clearly driven by enhanced resourcing and professional development. Early inclusion also supports smoother transitions into primary school and strengthens ongoing learning for children with disability.

Women in the workforce

Women's workforce participation in ECEC is a key issue to consider when amending the Standards, with benefits that extend beyond economic growth to include improved social and financial outcomes for individuals. According to the Australian Bureau of Statistics, the most common reason women were unavailable to start a job or work more hours within four weeks was 'caring for children'[15]. Access to disability-inclusive childcare can reduce barriers for women caring for children with disability, helping to improve their access to work and economic participation—particularly for women who are primary carers.

Peak body in the public consultation told a story about the impacts on parents, particularly women, of enforced part-time attendance for children with disability on the ability to earn money to meet the needs of their family.

According to the Productivity Commission’s 2024 ECEC Inquiry Report, removing ECEC-related barriers could see an increase in labour supply of up to 143,000 full-time equivalent workers.[16] The PC Inquiry report also showed that by enabling families, particularly mothers, to make choices about their balance of caring for children and other activities, including work, ECEC can contribute to the wellbeing of families. Working increases family income, which can be beneficial for children and parents.[17] Including ECEC in the Standards could help promote more inclusive access to ECEC services and increase workforce participation for women who are carers of children with disability.

In 2021, over 216,000 staff were employed in the ECEC sector and 92 per cent of the workforce were female.[18] Clearer obligations, policies and training will empower the female-majority workforce to take informed, confident action aligned with the Disability Discrimination Act as expected by families of children with disability.

Aboriginal and Torres Strait Islander children

In 2018, 16.3 per cent of Aboriginal and Torres Strait Islander children aged 0-14 had a disability.[19]  This is higher than the rate for non-First Nations children. The PC Inquiry found that mainstream ECEC services may be limited in their ability to support Aboriginal and Torres Strait Islander children in a culturally safe way.[20] Amending the Standards could help ensure Aboriginal and Torres Strait Islander children with disability can access inclusive education and care on the same basis as children without disability. This supports early participation in education and contributes to achieving Close the Gap targets in ECEC.

Stakeholder in the public consultation said that the Standards must create a safe and supportive environment that is culturally relevant and accessible with consistency and accountability to ensure cultural safety, self-determination, and community involvement are being met.

Relationships with staff

The 2020 Review of the Standards found that children with disability had positive experiences and outcomes when parents and carers built and maintained strong relationships with ECEC staff. The 2020 Review heard that parents often felt the burden of communication rested on them. As the Standards help education providers to apply the Disability Discrimination Act, including ECEC in the Standards would support educators to share this responsibility, foster stronger partnerships with families, and improve outcomes for children with disability.

Participants in the 2020 Review of the Standards consistently identified the importance of strong consultation between services, educators, parents and carers in the process of identifying the needs of the child and making a reasonable adjustment.

Stakeholder in the public consultation outlined the importance of Aboriginal and Torres Strait Islander staff in providing culturally safe communication between the early childhood education and care setting and families.

Based on the above likely impacts, it is reasonable to expect that there are likely to be moderately beneficial impacts families, carers and children. This results in a scoring of +2 in the MCA for Options 2 and 3.

Costs and benefits to ECEC services

Including ECEC services in the Standards would make it clearer and easier for ECEC providers and services to understand their obligations to support children with disability.

Australia has obligations under the United Nations Convention on the Rights of Persons with Disabilities. Under Article 7, Children with Disabilities:

1.     States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.
2.     In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.

Including ECEC services in the Standards requires providers and services to take measures to ensure children with disability have the same human rights, (e.g. the right to education) on the same basis as children without disability.

All ECEC providers and services must already follow the Disability Discrimination Act and this will continue. The Standards explain how the Disability Discrimination Act works in an education context. ECEC providers and services must keep making reasonable adjustments so that children with disability can and access and participate in services on the same basis as children without disability.

Services must also still consult with parents, carers and guardians on adjustments to help children join in.

Peak body in the public consultation said by ensuring that all early childhood education providers uphold the rights of children with disability, we can enhance inclusion, access, and educational outcomes from the earliest years.

ECEC services would need to review and update their policies and procedures to ensure alignment with the Standards. This would represent a modest increase on existing requirements to comply with the Disability Discrimination Act and other sector obligations related to inclusion.

Educators, leaders, and support staff would be expected to undertake professional learning on the Standards to strengthen their understanding. This represents a minor increase on existing professional development requirements for the Disability Discrimination Act and broader ECEC sector obligations.

Stakeholders in the public consultation said there is a need for training for early childhood education and care educators, including mandated training on disability inclusion and how to implement reasonable adjustments effectively.

Costs and benefits to community organisations

Expanding the Standards to include ECEC services is likely to provide greater clarity around obligations, which may reduce the need for families to seek advocacy support from community organisations. While there may be initial costs for these organisations to understand the changes, these are offset by the potential reduction in complaints. As a result, options 2 and 3 receive a neutral score (0) in the MCA.

Additional impacts on families, carers of children with disability and ECEC services

The impacts need to be determined separately for options 2 and 3, given the different coverage and impact under each option. These qualitative assumptions are in the following sections. The regulatory burden measurement for option 2 is included on page 17.

Option 2: Amend the Standards to include ECEC services that follow an approved learning framework

Option 2 is to change the Standards to include services that by law must deliver an education program based on approved learning framework to children under 13 years old. Feedback in submissions and consultations from the 2020 Review of the Standards and limited consultations with state and territory education and disability peaks showed that this was the most appropriate option.

The 2020 Review of the Standards identifies that the distinction made in the Standards between preschools/kindergartens and educational early childhood service providers does not reflect the complex arrangements in place in the ECEC sector:

• There are a diverse range of service types offered by ECEC providers. These include preschools, kindergartens, centre based care, family day care, in home care, outside school hours care (including for school aged children), and a range of other services
• There are jurisdictional differences in the settings in which preschool programs are delivered
• ECEC learning programs, including preschool programs, are delivered across these different settings in different ways (e.g. a centre based care service may offer a preschool program).

The ECEC services that have been identified as most suited to be covered by the Standards are those that by law must deliver an education program based on an approved learning framework. The Standards would apply to:

• education providers, and students enrolled in or applying to enrol in an education service (as currently covered by the Standards)

and

• educational early childhood service providers, and children enrolled in or applying to enrol in early childhood education services.

The Standards would apply to educational early childhood service providers in the same way they apply to other education providers, including educational institutions and authorities. This includes circumstances where children are enrolled or seeking enrolment, just as the Standards apply to students in other educational settings.

How we define the services in the Standards

The amendments will include a definition that aims to make it clear which ECEC services would be covered in the Standards. The definitions are the legal way to identify the services and providers the Standards would apply to. The draft definitions build on definitions used in other laws. For example, the definition of education and care services in Victoria’s Education and Care Services National Law Act 2010.

In the amendment an ‘educational early childhood service provider’ is a person (such as a company or an individual) or a group of people (such as a partnership or unincorporated association) that provides an educational early childhood service. This includes:

•      A service approved under A New Tax System (Family Assistance) (Administration) Act 1999

−        this is a service that attracts child care subsidy (CCS) or additional child care subsidy (ACCS)

•      A service that is approved under a law of a state or territory to provide child care or a preschool program that is legally required to provide children with an education program that is based on an approved learning framework. This would include:

−        all services approved under the National Quality Framework (NQF)

−        some other non-NQF service types approved under state or territory law.

In the amended Standards, an approved learning framework includes:

•      the two nationally approved learning frameworks– these are the Belonging, Being & Becoming  - Early Years Learning Framework and My Time, Our Place – Framework for School Age Care in Australia

•      a state or territory approved framework – for example, the Victorian Early Years Learning and Development Framework.

The Standards would apply to any ECEC service provider that fits the definition. They may fall under more than one condition.

Example ECEC services to be included in the Standards

This list below is a guide only. How the Standards apply will depend on characteristics of each service. Depending on which state or territory a service is in, and the laws under which they are approved or registered, other services may meet at least one of the required conditions for inclusion in the Standards.

Examples include:

•      Centre Based Care – usually in centres approved to provide quality early childhood education and care

•      Family Day Care – usually where an educator provides education and care in their home

•      Outside School Hours Care – education and care before and after school hours and during school holidays

•      In Home Care – where an educator provides education and care in the child’s home for families who cannot access other forms of early childhood education and care.

Example ECEC services not affected by the changes

A list of examples is provided below. These services will continue to have obligations under the Disability Discrimination Act and include:

•      informal care through personal arrangements such as other family members providing care

•      services that give instruction in a particular activity – for example, language or ballet class

•      care provided by a hotel or resort to children of short-term guests

•      care provided where the parent or carer is readily available such as at a gym

•      care provided under a child protection law of a state or territory.

Costs for ECEC services

This is examined in more detail under regulatory burden measurement on page 17.

Benefits for ECEC services

Public consultation on amending the Standards resulted in positive and supportive feedback to include in the Standards the services that by law must deliver an education program based on approved learning framework. The benefits identified included strengthened accountability, increased awareness and clearer guidance to ECEC services about meeting their obligations under the Disability Discrimination Act. Similar benefits were mentioned across feedback from both individuals and organisations.

Peak body in the public consultation said the inclusion of Child Care Subsidy approved providers and state or territory approved early childhood education and care services aligns with the intent of the Standards, which is to ensure that children with disability have equitable access to education and related services.

Low awareness of the Disability Discrimination Act among educators is a recurring issue in research and consultation feedback. This limits the effectiveness of the Disability Discrimination Act and leads to inconsistent application across education settings. Research in Appendix 1 suggests that raising awareness is the first step toward bridging knowledge and power gaps between educators and children with disability. Some early childhood educators are already aware of their obligations under the Disability Discrimination Act, suggesting a foundation to build on.

Consultation and the literature review showed that educators feel underprepared and unsupported in effectively including children with disability in ECEC settings. The most frequently cited concern was the shortage of staff with the necessary skills and expertise to provide appropriate support. There was a call in the public consultations for more specialised staff and training in the ECEC sector. This combination of perceived and actual gaps in capability within the ECEC workforce presents a significant barrier to inclusive education for children with disability.

Peak bodies and providers in the public consultation said the change would promote inclusion by helping to create a consistent and fair early childhood education and care environments.

Including specified ECEC services in the Standards would clarify obligations under the Disability Discrimination Act, reducing the time and effort required to interpret the Disability Discrimination Act in an education context. This would ease the burden on providers, strengthen their understanding, and support the delivery of more inclusive services for children and young people with disability.

Based on the above likely impacts, it is reasonable to expect that the changes for ECEC services would be minimally beneficial due to the benefits of inclusion in the Standards. The benefits outweigh the costs. This results in a scoring of +1 in the MCA for Option 2.

Option 3: Amend the Standards to include all ECEC services

Option 3 is to change the Standards to include all ECEC services that provide any type of care to children under 13 years old.

Costs and Benefits to ECEC services

Including all ECEC services in the Standards could cause confusion among services because the education concept in the Standards would not easily be applied to services which are not required to provide an education program based on an approved learning framework.

While professional learning on the Standards may benefit all ECEC providers, it may create tension around what constitutes education under their current responsibilities. Some providers may feel pressured to adopt an approved learning framework, even though this is not required under the Disability Discrimination Act.

Services that are not required to follow an approved learning framework must still follow obligations under the Disability Discrimination Act about who is included and what their obligations are under the Disability Discrimination Act or the Standards.

Services that do not provide education services would take more administrative time to understand their obligations. They may undertake unnecessary professional learning, resulting in additional cost to the service. It could cause burden on providers by placing the responsibility on them to determine whether they are captured under the existing definition of an educational institution as defined in the Disability Discrimination Act and the Standards.

Based on the above likely impacts, it is reasonable to expect that the additional costs would not be balanced by the benefits to the inclusion in the Standards. This results in a scoring of -1 in the MCA for Option 3.

Regulatory burden measurement

This section outlines the costs for the recommended option, being Option 2, and the consultation and implementation process.

The department commissioned an independent regulatory burden measurement on including prescribed ECEC services in the Standards. The data in the analysis comes from centre based care, outside school hours care, vacation care, family day care and in home care settings (as per Option 2).

To undertake the regulatory burden measurement, population statistics and best practice cost assumptions have been used to estimate costs and benefits which can reasonably be attributed to the Standards:

•      additional time required by educators, administrative and support staff to understand the changes to the Standards,

•      time required to review existing policies and practices to ensure compliance with the Standards, and

•      additional time required by parents or carers to understand the changes to the Standards.

The regulatory burden measurement assumes increased costs apply in the first year of implementation only as ongoing costs would not be any greater than existing costs under the Disability Discrimination Act. From year two onwards, the time taken to understand the requirements under the Standards, would be a like-for-like replacement of the time previously used to understand the requirements under the Disability Discrimination Act.

Analysis has determined there is no ongoing increase in administrative burden for families and carers and ECEC providers. Families, carers and students with disability currently have existing costs to understand their rights under the Disability Discrimination Act. ECEC services are already required to implement policies, procedures and risk assessments for a range of circumstances in education and care services including inclusion obligations under ECEC specific requirements and the Disability Discrimination Act.

Calculation assumptions

An overview of the costs and benefits associated with the changes according to impacts on ECEC services and families and carers of children with disability is set out below. These impacts are based on the qualitative analysis in Question 4.

Education workforce statistics

The number of staff across the ECEC sector has been estimated based on workforce statistics from the available census data, which includes those working at centre based care, in home care, vacation care, outside school hours care and family day care which are services to be included under the changes.[21] The number of staff (FTE) with an ECEC related qualification for the compliance cost of reviewing and updating policies and procedures is 149,886. The number of all staff (FTE) relevant to calculations about the time to understand the changes is 216,619.

Average cost per staff member

The average cost per staff is assumed a rate of $85.17 per hour. This represents the economy-wide value for employees of $48.67 per hour, considered against a multiplier of 1.75 to account for non-wage labour costs (such as payroll tax and superannuation) and overhead costs, per the guidance included in the OIA’s Regulatory Burden Measurement Framework.[22]

Time per staff member

The time required by all members staff in ECEC services to understand the changes to the Standards associated with the amendment has been estimated as 1 hour.[23] This time assumption draws on the estimated time of 1 hour required to complete professional learning on the Disability Standards for Education for early childhood training module.[24]

The time required to update policies and procedures assumes 1 hour of work by staff with an ECEC qualification in the first year of implementation. The increase in administrative burden for providers is estimated at this level given services are already required to implement policies, procedures and risk assessments for a range of circumstances in education and care services. It would most likely be staff with qualifications in ECEC who would update policies.

Education student statistics

The number of children with disability across the ECEC sector has been estimated based on the available census data, which includes those attending centre based care, in home care, vacation care, outside school hours care and family day care which are services to be included under the changes. The number of children included in the analysis is 66,399 children aged 0 to 12 with disability.[25]

Average cost per parent

The average cost per parent assumed a rate of $37.00 per hour. This represents the impact of an individual’s time not in the usual course of their employment, also referred to as leisure time. This is assumed to be the opportunity cost of the time spent understanding the changes under the amendments. This value is based on average weekly earnings as per the guidance included in the OIA’s Regulatory Burden Measurement Framework.[26]

Time per parent

The regulatory burden measurement calculation assumes one parent or carer per child would be required to understand the changes to the amendments. This would be an upper limit, given some children would share a parent.

The time required by parents or carers to understand the changes to the Standards associated with each of the amendments has been estimated to be 0.5 hours.

The time required for parents or carers to understand the changes to the Standards draws on training and information material made available by the Department on understanding the Disability Discrimination Act and the Standards.[27]

Community organisations

The analysis did not identify specific costs incurred by community organisations, including disability advocacy organisations that support children with disability and their families and carers. Given the relatively small number of these organisations (approximately 45 organisations), and their small staffing levels, the Department considers that any associated costs or benefits are likely to be negligible. [28]

Based on the assumptions outlined above, Table 3 presents the calculated burden for the amendments for the first year. It shows that the costs to businesses, and individuals are minimal with the changes. Importantly, independent analysis determined no increase in administrative burden past the first year.

Table 3. Regulatory Burden Measurement – ECEC Inclusion

Other changes being made

Guidance Notes

The Guidance Notes give extra information to help people understand and comply with the Standards. The Guidance Notes are not part of the law. The 2020 Review of the Standards recommended that we simplify the Guidance Notes to make them more useful.

The Guidance Notes will be replaced with updated guidance materials made available on the Department of Education website. This will be available alongside other current resources on the Standards and allow everyone to access guidance and resources from one place. It will also allow for timely updates to guidance if the Standards change.

Other miscellaneous changes

These changes would have no regulatory impact. Schedule 2 of the draft Amendment Standards lists other minor or technical changes to the Standards. This includes changes to:

•      use the new name for the Australian Human Rights Commission instead of the previous name, the Human Rights and Equal Opportunity Commission

•      use gender-neutral language like ‘the student’ or ‘the child’ instead of ‘his or her’

•      refer to the correct section number of the Disability Discrimination Act (Section 39)

•      changes to references to the Standards as a set of standards versus the individual standards (e.g. “these standards” instead of “the standards” when referring to the Standards as the legislation)

•      minor formatting changes

•      update the title for the Minister for Education.

Consultation

Question 5 – Who did you consult and how did you incorporate their feedback?

Consultation from the 2020 Review of the Standards

In 2020, the department conducted a review of the Standards. Over the ten-week consultation period, the Consultation Hub received 18,565 unique visitors, and the review attracted 179 formal submissions.

In addition to public consultations, the review engaged with key national agencies, regulators, and sector representatives. It was guided by a reference group comprising state and territory officials from all education sectors. A Young People’s Advisory Group was also formed to ensure the voices of young people with disability were heard directly.

A separate stream of consultations focused on the ECEC sector, exploring the awareness, understanding, and application of the Disability Discrimination Act among parents, carers, and educators.

A number of participants in the review consultations—including through the Australian Children’s Education and Care Quality Authority’s engagement with ECEC providers—raised and supported the extension of the Standards to the ECEC sector. There was no view put to the Review that the Standards should not be extended to ECEC.

Peak body in 2020 Review of the Standards consultation said that - in early childhood education and care settings there is confusion over whether the Standards apply to 3- and 4-year-old kinder.

Feedback led to a recommendation to:

•      build awareness and capability in the sector regarding the Disability Discrimination Act, and

•      prepare draft amendments to the Standards to incorporate ECEC for sector consultation.

Limited consultation

In 2021, an Implementation Reference Group (IRG) was established as the principle consultative mechanism for the department to work with state and territory governments and education authorities to implement the recommendations of the 2020 Review of the Standards. The department also consulted extensively with peak disability organisations.

A limited consultation with IRG members confirmed a threshold issue to determine which ECEC services should be included in the Standards is whether the educational concepts used in the Standards would make sense in the various ECEC contexts.

When considering options, IRG members expressed a preference for the Standards to apply to ECEC services that are required to have an educational program based on a national or state approved learning framework or curriculum such as the Belonging, Being & Becoming - Early Years Learning Framework or the My Time, Our Place –Framework for School Aged Care in Australia (Option 2). In response to this feedback, the Australian Government undertook a public consultation process on draft amendments to the Standards.  

Public consultation

Public consultation was conducted from 31 January to 28 February 2025. More information is available on the Department of Education website. The consultation sought feedback on an Exposure Draft of the amendments, including whether the proposed changes would cover the ECEC services most appropriate for inclusion in the Standards.

The department received 146 responses from individuals and organisations, including parents and carers of children with disability, people with disability, state and territory governments, ECEC providers and educators, First Nations stakeholders, disability organisations, legal professionals, and other education sector stakeholders.

State and territory education officials were also consulted separately through the Early Childhood Policy Group (under the Education Ministers Meeting). In addition, state and territory education ministers and Attorneys-General were invited to provide comment.

Figure 1 shows the types of respondents who engaged in the public consultations via a survey and submission processes. The consultation included a range of people from across the ECEC sector and provided a sample of respondent types.

Figure 1. Type of respondents to the public consultation

Overall, the responses received were overwhelmingly positive and supportive of the change to include ECEC services in the Standards. Similar benefits were mentioned across feedback from both individuals and organisations. Five stakeholders’ submissions were supportive of the policy for ECEC services to be inclusive of children with disability but did not agree with the suggested change to include ECEC in the Standards in any form.

Peak body in the public consultation commented that the changes to the Standards will clarify the obligations of education providers and the requirement to uphold Australia’s disability discrimination laws.

Assessment

Question 6 – What is the best option from those you have considered and how will it be implemented?

Based on feedback from limited and public consultations on the proposed amendment to the Standards (see Question 5), Option 2 is the recommended approach. It is expected to provide the greatest clarity for ECEC services regarding their obligations under the Disability Discrimination Act, compared to both the status quo and Option 3.

Question 4 determined that Option 2 would have a limited regulatory impact on ECEC services or families and carers of children with disability. The analysis showed that there is a positive effect associated with implementing this option for both services and families. The analysis showed that Option 1 would have no impact on ECEC services but would have a negative impact on families and carers of children with disability. It also showed that Option 3 would have a negative impact on ECEC services.

Option 2 will have minimal costs associated with the changes because the policy effects of the changes balance the existing obligations providers have under the Disability Discrimination Act. ECEC services already have policies and professional learning in place to support staff understanding of their obligations.

Option 2 would require updating policy and current training in the first year of implementation. Following the first year, professional learning and policies would become ‘business-as-usual’ as per the current obligations for services.

Under Option 2, the costs for individuals are balanced by the policy impacts of improved understanding of rights and increased inclusion for children and young people with disability who are enrolled in an ECEC setting.

Implementation

Foundational work to support the implementation of the amendments

The 2020 Review of the Standards outlined first steps ahead of amending the Standards. This included strengthening the understanding of existing rights and obligations under the Disability Discrimination Act as they apply to the ECEC sector by developing information products.

In 2022 and 2023 the Australian Children’s Education and Care Quality Authority (ACECQA) published new resources to help ECEC providers find out more about and understand the Disability Discrimination Act. The resources support providers to understand and implement their obligations under the Disability Discrimination Act. The resources include an information sheet, a team meeting package and a Disability Discrimination Act recruitment and induction package.

These resources can be found at Appendix 2.

The Australian Government also produced a toolkit for parents and caregivers of young children with disability to explain their rights and how to advocate for their child in ECEC. The toolkit can be found on the Department of Education website.

The Australian Government also worked with state and territory governments to align national ECEC policies and regulations and obligations under the Disability Discrimination Act. More information about how to support children with disability in ECEC can be found in:

•      Belonging, Being and Becoming: The Early Years Learning Framework for Australia

•      My Time, Our Place: Framework for School Age Care in Australia

New guidance and training

Implementation will be supported through new guidance and training materials to help services review policies, make necessary changes and undertake professional learning. The materials will assist staff in building their knowledge of how to apply the Standards.

New fact sheets will be published on the department’s website, specifically targeted at ECEC services. These will provide clear guidance on the changes being introduced and the timing of when they will take effect.

New e-learning courses for educators on the Standards are currently in development. Separate courses will be available for ECEC educators, leaders and support staff OHSC educators and leaders. One course will specifically support staff in outside school hours care and there will be one course for ECEC settings such as centre based care and family day care to build their understanding of inclusive education and how to apply the Standards in their daily practice.

There will also be guidance provided for parents and caregivers on their rights under the Standards. These materials will complement other resources available on the department’s website for parents and carers of young people with disability on the Department of Education website.

The new materials will supplement current resources and build on foundational work to strengthen the ECEC sector’s understanding of their obligations under the Disability Discrimination Act. Current resources on the Department of Education website will be reviewed and updated as needed to ensure they reflect the obligations under both the Disability Discrimination Act and the Standards.

The Australian Government have engaged the Australian Children’s Education and Care Authority to develop an Inclusive Capability Framework. The framework and resources will complement the Australian Government’s Inclusion Support Program and the ECEC amendments to the Standards.

Submissions from the public consultation said that it is beneficial to provide targeted training and resources to early childhood services. Building the capacity of educators to support children with disability, while maintaining flexibility in how services meet these needs, would be an effective approach to achieving inclusion. 

Decision making process

The Minister for Education, in consultation with the Attorney-General, is required to review the Standards every 5 years. The Attorney-General’s policy authority on matters related to the Standards is required as the Attorney-General is the minister responsible for the Disability Discrimination Act, under which the Standards are made.

Following drafting of the amendments, the department will brief the Minister for Education to seek approval of the final amendments to the Standards. The Minister for Education will request the Attorney-General, as the Minister responsible for the Disability Discrimination Act, to make the amendments and agree with the timing for tabling the amendments in Parliament. Once agreed, the Attorney General’s Department will table the amended Standards in Parliament. They will have a disallowance period of 15 sitting days in each House before they are in effect.

The final timing of when the changes come into effect will be determined by the Australian Government.

Key milestones of implementation

The first step in implementation will be tabling the amendments in Parliament by the Attorney-General. The tabling process will be supported by communications to the sector to ensure the changes and commencement timing are widely understood.

Following the Government’s announcement of the commencement of the legislation, the department will implement a communications plan. This will include accessible and plain language information and guidance to support engagement with the sector and the public. Targeted consultation with the sector will continue through existing forums to support understanding of the changes. This approach will ensure sector policies reflect the transition from the Disability Discrimination Act to the context of the Standards.

Key products supporting implementation of the Standards

1.        Fact Sheets
   •          Targeted at Early Childhood Education and Care (ECEC) services
   •          Published on the Department of Education website
   •          Provide clear guidance on upcoming changes and their implementation timeline.
2.        E-learning Courses on the Standards
   •          Tailored for:
     •          ECEC educators, leaders, and support staff
     •          Outside School Hours Care (OSHC) educators and leaders
   •          Focus on:
     •          Building understanding of obligations under the Standards
     •          Applying the Standards in daily practice
3.        Parent and caregiver guidance
   •          Explains rights under the Standards
   •          Complements existing resources for families of children with disability on the Department of Education website.
4.        Supplementary materials and resource updates
   •          Existing resources on the Standards on the Department of Education website will be reviewed and updated to reflect ECEC obligations under the Standards.

Implementation risks and how they will be managed

Some ECEC services may be concerned about increased regulatory burden and workloads resulting from the changes. These risks have been addressed through the impact analysis and extensive consultation with key stakeholders. Foundational efforts to build awareness and capability around the Disability Discrimination Act, along with the planned implementation support through new resources and training, will help further mitigate these concerns.

Evaluation

Question 7: How will you evaluate your chosen option against the success metrics?

Following the amendment coming into effect, the department would monitor and evaluate the success of the policy. The Minister for Education must review the Standards every five years in consultation with the Attorney-General. The next review of the Standards after the expected implementation in 2026 will be undertaken in 2030. This would provide the opportunity to evaluate whether the Standards are supporting inclusive education practices and policies in ECEC services. The Reviews of the Standards, collection of feedback, and subsequent evaluation will be the responsibility of the Department of Education.

The evaluation will take an outcomes-based evaluation approach which focuses on the changes in knowledge, attitudes and behaviours that resulted from the amendment of the Standards. Other, ongoing feedback will be collected by the department on an ad hoc basis, as part of business-as-usual activities, including through ministerial correspondence, stakeholder meetings and forums.

It will also consider process-based evaluation to identify the take up of e-learning courses and website hits on online resources.

Table 3 describes the way the department will evaluate the success of the changes in the 2030 Review of the Standards as well as through metrics obtained through the professional learning courses.

Table 3. Success metrics against policy objectives

Evaluation questions will be refined at the time of the 2030 Review of the Standards, but will likely include, or be like, the following key evaluation questions:

•      How has including most ECEC services in the Standards made things better for children and students with disability and their parents and carers?

•      How has including most ECEC services in the Standards made things better for educational early childhood services and providers?

•      How well were the amendments implemented? Were the resources provided sufficient for educational early childhood services and providers to understand their obligations?

•      Was the policy efficient (that is, did it achieve its outcomes at least cost)?

•      Did the changes to the Standards have different, unexpected effects on different cohorts, such as different sized providers?

Appendix 1: Literature Review and Bibliography

The department commissioned a literature review to help guide qualitative analysis of the costs and benefits of the preferred option for the amendments to the Standards.

Social and emotional impacts

There are inherent challenges in analysing the proposed amendment to clarify the application of the Standards to the ECEC sector through a literature review. While there is a significant body of research on the Standards, it typically focuses on their socio-historical development (e.g. Anderson & Boyle 2019), on broader critiques of the Standards (e.g. Mavropoulou et al. 2019), or on the lived experiences of children and educators with the Standards (e.g. Munchan & Agbenyega 2020).

A review of the available academic literature found no research that focussed directly on a perceived gap with the ECEC sector and the costs and benefits of addressing it.

This gap in academic research is not unexpected based on broader reviews and scoping studies of the literature (Duncan et al 2021).

Despite this, it is possible to draw a broader analysis of the Standards as they relate to the ECEC sector and infer impacts from inclusion into the Standards. Where appropriate, further analysis has been drawn from grey literature.

Literature cited, and a broader reference list is included at Bibliography.

Awareness

Throughout the literature, awareness of the Standards emerged as a key theme.

Throughout grey literature, links were drawn to awareness as a limiting factor in realising the intended policy outcomes of the Standards and the Disability Discrimination Act 1992. These documents often point to examples of educators and education staff being unaware of their obligations under the Disability Discrimination Act or unfamiliar with the Standards (Commonwealth 2023). These observations were substantiated in academic literature, either highlighting examples of the lived experience of children in this regard (Nevill & Forsey 2022) or highlighting broader observations of other authors in a deficit of awareness (Duncan et al 2020; Mavropoulou et al 2021).

Sub-optimal levels of awareness impair the efficacy of the Standards. Without clear and direct guidance, ‘schools frequently develop local-level policies, resulting in a broad range of interpretations and applications across the education sector (Duncan et al. 2020). This has led research to identify raising awareness as the “first hurdle… [in] addressing the differences in knowledge, perspectives and power between educators, and students with disability and their associates” (Urbis 2015, in Mavropoulou et al 2021).

Furthering this position, research from Children and Young People with Disability Australia (2023) indicates that an increased awareness of the Standards and exposure to advocacy around the Standards, is linked to higher degrees of confidence for young people with disability to self-advocate. While this provides an indirect benefit for the inclusion of all students into the Standards who are likely to require self-advocacy throughout their life, it is noted there are clear developmental, legal, and social barriers to this advocacy, as children in ECEC are in the dependent position of having adults act on their behalf (Lieter 2004). These barriers should moderate, not remove this benefit.

Limited academic research on inclusive education supports the view that the increased advocacy of parents, carers and associates can lead to improved education and social outcomes (Nevill & Forsey 2022). This is a position that is further affirmed in grey literature, with several examples of parents, carers or associates using the Standards as an advocacy tool to realise the rights of students with disability (Commonwealth 2023). 

Based on the research available, the inclusion of the ECEC sector into the Standards would serve to increase the awareness of the Standards. As the Standards apply to all other levels of education, increased exposure at an earlier level of education is likely to improve awareness over the education lifespan. It is possible that this would provide a greater sense of confidence in the use of the Standards during education transition from early childhood education and care to primary schooling.

As improved awareness is derived from conversations held during earlier education and care experiences, it remains partly an exercise in shifting conversations regarding disability and inclusion in education from primary and preschools to the broader ECEC Sector, which may not have the resources to properly support these conversations. It is also recognised that the presentation of some disabilities in children may not occur in ECEC. There are other policy levers that could be used to realise improved awareness of the Standards – including education campaigns targeting parents and carers.

Finally, it is noted that there is also evidence to suggest that some early childhood educators are aware of their obligations and requirements (Muncan & Agbenyega 2020). This suggests that for a subset of educators, impacts relating to awareness building are going to be cost-neutral.  

Inclusion

Throughout the literature, inclusion emerged as a key theme, both as a clear benefit for the Standards and their amendment, as an optimal economic approach, and as an enabling factor to realising policy change.

In considering the broader justifications for inclusive education with Australia, Boyle and Anderson (2020) highlight that a small number of studies have identified inclusive education to be either a more cost effective or cost neutral approach to “educating students with additional needs”.  However, it is recognised that several limiting factors, including data and information availability (ibid.) limit the ability to infer impacts relevant to the proposed amendment.

As a broader concept, a significant body of research is focused on the improved outcomes associated with the inclusion of children and young people with disability in early childhood education and care (McLeod et al. 2022; Symeonidou et al. 2023; and Delalibera & Ferreira 2018). However, given that the Standards do not mandate the children are enrolled in ECEC and the NQF already operates to ensure inclusion, Callida considers it would not be appropriate to present this as a direct benefit of the proposed amendment.

Finally, several articles consider positive attitudes towards inclusion as an enabling factor to realising policy implementation and change (Purdue 2009). These articles suggest that for proposed amendments to the ECEC, pairing efforts with other measures to improve attitudes towards inclusion – including diversity and inclusion awareness initiatives – is likely to assist in realising the intended policy outcome.

However, even where support for inclusion is in place in schools, it “is challenged by lack of teacher support, knowledge and skills to adequately implement inclusion for children with disabilities” ((Lee & Recchia, 2016; Soukakou, 2012; Warren et al., 2016; Wenet al., 2011) in Munchan & Agbenyega 2020) and staff confidence (Petriwskyj 2010).

This finding is echoed in international literature (Purdue 2009) where research suggest that “[r]educing barriers in policy at a centre level requires a change in beliefs and constructions about disability difference and education”. Further, that “reform for inclusion is most likely to be progressed when the principles and values of inclusion, rather than exclusive ideologies and assumptions that restrict opportunities for children, guide policy development in centres” (ibid.).

Taken together, this supports the view that while neither a direct nor indirect cost, a clear barrier to the realising the intended outcome of the proposed amendment will be attitudes of educators, carers and their institutions to inclusion.

Resourcing and Professional Development 

The key theme throughout the literature and both previous themes is that improved outcomes for children with disability is most clearly attributable to improved resourcing and professional development. 

Research by Munchan and Agbenyega (2020) on the experiences of early childhood educators teaching young children with disability, noted that educators “did not feel as though they had enough support to teach children with a disability effectively, [with] the main issue raised the lack of staff to assist children with disability”. This view is supported by Rosenberg et al. who note that interpreting legislation and policies, and implementing inclusive practices can be a daunting challenge in the face of everyday teaching for experienced teachers (Anderson & Boyle, 2015); for beginning teachers, these responsibilities can appear insurmountable (McKay, 2016; Miles & Knipe, 2018) if they are not adequately prepared professionally.

These observations are supported by literature that sought to draw a link between improving teachers’ skills and improving outcomes (Davies et al. 2016; Forlin et al. 2008; Mavropoulou et al. 2021).

Taken together with observations regarding awareness and inclusions, as complexity in the legislative and policy environment develops, indirect costs relating to resourcing and professional development are likely to increase.

Limitations – ECEC

There are limitations that should be considered with the findings of this analysis.

Primarily, there is a gap between developments in legislation and policy in education and observations of their impact. As Mavropoulou et al. (2021) observe “a significant obstacle to inclusive education reform is the lag between changes to policy rhetoric, and the change we see in people’s behaviour”. While this does not necessarily impact a prospective exercise, it will present an impediment to monitoring and evaluation.

Further, research in this area is likely to be further complicated by definitional and jurisdictional issues. Definitions of inclusive education and disability are not uniformly accepted (Page et al. 2024; Duncan et al. 2020), and the latter is subject to different approaches adopted by Australian state and territories. While this presents some complications in inferring costs and benefits, it also impacts the research that is undertaken at an academic level (e.g. Graham & Jahnukainen 2011 who focuses primarily on the NSW context).

Duncan (et al. 2020) suggest that there is ambiguity in the Standards that results in a lack of clarity that results in schools “frequently develop[ing] local-level policies, resulting in a broad range of interpretations and applications across the education sector”. While this is understandable, given the need to translate federal requirements across several jurisdictions, it is likely to complicate the ability to isolate the impacts associated with the proposed amendment.

Bibliography for Literature Review

Ainscow, M. 2020, ‘Promoting inclusion and equity in education: lessons from international experiences’, Nordic Journal of Studies in Educational Policy, 6(1)

Anderson, J. and Boyle, C. 2014, ‘Inclusive Education in Australia: Rhetoric, Reality and the Road Ahead’, Support for Learning, 30

Anderson, J. and Boyle, C. 2019, ‘Looking in the mirror: reflecting on 25 years of inclusive education in Australia’, International Journal of Inclusive Education, 23(7-8)

Beecher, G. 2005, ‘Disability standards: the challenge of achieving compliance with the Disability Discrimination Act’, Australian Journal of Human Rights, 11(1)

Boyle, C. and Anderson, J. 2020, ‘The justification for inclusive education in Australia’, Prospects, 49

Carrington, S., Lassing, C., Maia-Pike, L., Mann, G., Mavropoulou, S. and Saggers, B. 2022, ‘Societal, systemic, school and family drivers for and barriers to inclusive education, Australian Journal of Education, 66(3)

Commonwealth 2023, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report, Volume 7, Part A

Cumming, J.J. and Dickson, E. 2013, ‘Educational accountability tests, social and legal inclusion approaches to discrimination for students with disability: a national case study from Australia, Assessment in Education’, Principles, Policy & Practice, 20(2)

Cumming, J.J., Dickson, E. and Webster, A. 2013, Reasonable Adjustments in Assessment: Putting Law and Policy into Practice in Australia, International Journal of Disability, Development and Education, 60(4)

Davies, M., Elliott, S.N. and Cumming, J. 2016, ‘Documenting support needs and adjustment gaps for students with disabilities: teacher practices in Australian classrooms and on national tests’, International Journal of Inclusive Education, 20(12)

de Bruin, K., Poed, S. and Jackson, R. 2023, ‘Performance of Australia’s Disability Standards for Education 2005: a policy analysis and evaluation’, International Journal of Inclusive Education,

Delalibera, B.R. and Ferreira, P.C. 2018, ‘Early Childhood Education and Economic Growth’, Journal of Economic Dynamics & Control, 98

Dickinson, H., Smith, C., Yates, S. and Faulkner, A. 2022, Taking the first step in an inclusive life – experiences of Australian early childhood education and care. Report prepared for Children and Young People with Disability Australia (CYDA), Melbourne.

Dickson, E. 2014, ‘Disability Standards for Education 2005 (Cth): Sword or shield for Australian students with disability? International Journal of Law and Education’, 19(1)

Dickson, E. 2022a, ‘Barriers to inclusion embedded in the Disability Discrimination Act 1992 (Cth)’, Australian Journal of Education, 66(3)

Dickson, E. 2022b, ‘Legal system barriers to the effectiveness of the Disability Discrimination Act 1992 (Cth) as a support for the inclusion of students with disability’, Australian Journal of Education, 66(3)

Dixon, R. 2018, ‘Towards Inclusive Schools: The Impact of the Disability Discrimination Act 1992 and DSE on Inclusion Participation and Exclusion in Australia’, in Trimmer, K., Dixon, R., S. Findlay, Y. (eds) The Palgrave Handbook of Education Law for Schools. Palgrave Macmillan, Cham.

Duncan, J., Punch. R., Gauntlett, M. and Talbot-Stokes, R. 2021, ‘School autonomy and discrimination against students with disability in Australian primary and secondary education settings: a scoping review’, International Journal of Inclusive Education

Duncan, J., Punch. R., Gauntlett, M. and Talbot-Stokes, R. 2020, ‘Missing the mark or scoring a goal? Achieving non-discrimination for students with disability in primary and secondary education in Australia: A scoping review’, Australian Journal of Education, 64(1)

Forlin, C., Keen, M. and Barrett, E. 2008, ‘The Concerns of Mainstream Teachers: Coping with inclusivity in an Australian context’, International Journal of Disability, Development and Education, 55 (3)

Graham, L.J, and Jahnukainen, M. 2011, ‘Wherefore art thou, inclusion? Analysing the development of inclusive education in New South Wales, Alberta and Finland’, Journal of education policy, 26(2)

Guthrie, R. and Waldeck, E. 2008, ‘Disability Standards and Inclusiveness in Education: A review of the Australian Landscape’, International Journal of Discrimination and the Law, 9

Heckman, J.J. 2011, ‘The economics of inequality: the value of early childhood education’, American Education, 35

Leiter V. 2004, ‘Parental Activism, Professional Dominance, and Early Childhood Disability’, Disability Studies Quarterly, 24(2)

Mackenzie, M., Cologon, K. and Fenech, M. 2016, ‘’Embracing Everybody’: Approaching the inclusive early childhood education of a child labelled with autism from a social relational understanding of disability’, Australasian Journal of Early Childhood, 41(2)

Malaquias, C. 2022, ‘Unrealised promises and hollow claims: Australia’s failure to enact its international obligations under the CRPD for the education of students with disability’, Australian Journal of Education, 66(3)

Mavropoulou, S., Mann, G. and Carrington, S. 2021, ‘The divide between inclusive education policy and practice in Australia and the way forward’, Journal of Policy and Practice in Intellectual Disabilities, 18(1)

McLeod, R.H., Golden, A. and Hemmeter, M.H. 2022, ‘Special Education Services for Preschool-Aged Children’, Routledge.

McLeod, S., Press, F. and Phelan, C. 2010, ‘The (In)visibility of Children with Communication Impairment in Australian Health, Education, and Disability Legislation and Policies’, Asia Pacific Journal of Speech, Language and Hearing, 13(1)

Munchan, L. and Agbenyega, J. 2020, ‘Exploring early childhood educators’ experiences of teaching young children with disability’, Australasian Journal of Early Childhood, 45(3)

Nevill, T.P. and Forsey, M. 2022, ‘"We are all thrown into one basket": Dyslexia, schools and the (non)enactment of policies of inclusion’, Disability Studies Quarterly, 42(1)

Page, A., Barr, M., Rendoth, T., et al. 2024, ‘Making Reasonable Adjustments for Students With Disability in Australian Mainstream Classrooms: A Scoping Review’, Australasian Journal of Special and Inclusive Education

Petriwskyj, A. 2010, ‘Diversity and inclusion in the early years’, International Journal of Inclusive Education, 14(2)

Pitman, T. and Brett, M. 2022, ‘Disability and Australian higher education: The case for an Accessible model of disability support’, Australian Journal of Education, 66(3)

Poed, S., Cologon, K. and Jackson, R. 2022, ‘Gatekeeping and restrictive practices by Australian mainstream schools: results of a national survey’, International Journal of Inclusive Education, 26(8)

Purdue, K. 2009, ‘Barriers to and Facilitators of Inclusion for Children with Disabilities in Early Childhood Education’, Contemporary Issues in Early Childhood, 10(2),

Rosenberg, R., de Bruin, K. and Ludecke, M. 2024, ‘Beginning teacher preparation and readiness for the profession as inclusive educators’, Australian Journal of Education, 68(1)

Rowe, E.E. and Lubienski, C. 2017, ‘Shopping for schools or shopping for peers: Public schools and catchment area segregation’, Journal of Education Policy, 32(3)

Ryan, J. 2011, ‘Access and participation in higher education of students with disabilities: access to what?’, Australian Educational Research, 38

Serry, T., Snow, P., Hammond, L., McLean, E., and McCormack, J. 2022, ‘Educators’ perspectives about teaching and supporting students with learning difficulties in reading’, Australian Journal of Education, 66(3)

Steele, A., Banks, R. and Louis, W.R. 2023, ‘A co-designed tool to gather data from students with disability about their experiences in tertiary education: Insights from Australia’, International Journal of Discrimination and the Law, 23(1-2)

Symeonidou, S., Loizou, E. and Recchia, S.L. 2022, ‘The inclusion of children with disabilities in early childhood education: interdisciplinary research and dialogue’, European Early Childhood Education Research Journal, 31

Tancredi, H. 2020, ‘Meeting obligations to consult students with disability: methodological considerations and successful elements for consultation’, Australian Educational Researcher, 47(2)

Vleck, S. and Somerton, M. 2023, ‘Collaborative engagement between stakeholders in the education of Australian students with disability a scoping review’, International Journal of Inclusive Education

Vu, B., Khanam, R., Rahman, M. and Nghiem, S. 2020, ‘The costs of disability in Australia: a hybrid panel-data examination’, Health Economics Review, 10(6)

Walsh, T. 2012, ‘Adjustment, accommodation and inclusion: Children with disabilities in Australian primary schools’, International Journal of Law and Education, 17(2)

Appendix 2: Current resources to support implementation of the amendments 

The new materials will supplement existing resources and build on foundational work to support the amendments to strengthen the early childhood education and care sector’s understanding of existing rights and obligations under the Disability Discrimination Act 1992. The content in the existing resources will be reviewed and updated as required to ensure they reflect the obligations under both the Disability Discrimination Act and the Standards. 

Existing resources to support early childhood education and care services include: 

1.     In 2022 and 2023 the Australian Children’s Education and Care Quality Authority (ACECQA) published new resources to help ECEC providers find out more about and understand the Disability Discrimination Act. The resources support providers to understand and implement their obligations under the Disability Discrimination Act. The resources include an information sheet, a team meeting package and a Disability Discrimination Act recruitment and induction package. These resources can be found on the ACECQA website.  

1.     The Australian Government also produced a toolkit for parents and caregivers of young children with disability to explain their rights and how to advocate for their child in early childhood education and care. The toolkit can be found on the Department of Education website. 
2.     The Australian Government and ACECQA also worked with state and territory governments to align national early childhood education and care policies and regulations and obligations under the Disability Discrimination Act.
3.     Existing e-learning modules on the Nationally Consistent Collection of Data on School Students with Disability (NCCD) provide freely available modules related to early childhood settings on the NCCD Portal. These existing resources can currently be used by early childhood education and care services.
4.     There are other existing resources and training available to early childhood education and care services to help embed inclusive practices available from the Department of Education website.

[1] Department of Education Corporate Plan 2025-26, www.education.gov.au/about-department/resources/202526-corporate-plan-department-education

[2] Department of Education. 2025. Consultations – 2020 Review of the Disability Standards for Education 2005 - Department of Education, Australian Government, www.education.gov.au/disability-standards-education-2005/2020-review-disability-standards-education-2005/consultations.

[3] Department of Education, Skills and Employment. 2020. Final Report of the 2020 Review of the Disability Standards for Education 2005, www.education.gov.au/disability-standards-education-2005/resources/final-report-2020-review-disability-standards-education-2005.

[4] Department of Education. 2025. Consultation on changes to the Disability Standards for Education 2005, www.education.gov.au/disability-standards-education-2005/consultations/disability-consultation-ecec

[5] In most cases, for an individual to be eligible for Child Care Subsidy, the child must be aged 13 and under and not attending secondary school. However, there are certain circumstances where older children may still be eligible for Child Care Subsidy including children with a disability or medical condition under the age of 18 years. Australian Government Services Australia. 2023. Child Care Subsidy, Who can get it, www.servicesaustralia.gov.au/who-can-get-child-care-subsidy?context=41186.

[6] An approved provider is defined in the National Law as a person who holds a provider approval, which authorises them to apply for one or more service approvals. Approved providers are responsible under the National Law for managing an education and care service they are approved to operate, across areas such as health and safety of children, staffing and documentation. An approved service is the site at which children attend and are educated and cared for by teachers and educators. 

[7] ACECQA. 2025. NQF Snapshot Q4 2024, www.acecqa.gov.au/sites/default/files/2025-02/NQF%20Snapshot%20Q4%202024%20FINAL.pdf.  

[8] ACECQA. 2023. Disability Discrimination Act 1992 (DISABILITY DISCRIMINATION ACT) resources, www.acecqa.gov.au/resources/disability-discrimination-act-1992-Disability Discrimination Act-resources.

[9] Productivity Commission. 2024. A path to universal early childhood education and care, Inquiry report no. 106, Vol. 1, Canberra, www.pc.gov.au/inquiries/completed/childhood/report/childhood-volume1-report.docx.

[10] Australian Government. 2024. Disability Gateway, Early childhood Targeted Action Plan 2021–2024, www.disabilitygateway.gov.au/document/3146.  

[11] Commonwealth, Royal Commission, into Violence, Abuse, Neglect and Exploitation of People with Disability. Final Report (2023) vol 7, www.disability.royalcommission.gov.au/publications/final-report-volume-7-inclusive-education-employment-and-housing.

[12] Callida Consulting. 2024. Final Report: Proposed Amendments to the Disability Standards for Education 2005 [Unpublished] Summary at Appendix 1.

[13] Productivity Commission. 2024. A path to universal early childhood education and care, Inquiry report no. 106, Vol. 1, Canberra, p.21, www.pc.gov.au/inquiries/completed/childhood/report/childhood-volume1-report.docx.

[14] Productivity Commission. 2024. A path to universal early childhood education and care, Inquiry report no. 106, Vol. 1, Canberra, p21, www.pc.gov.au/inquiries/completed/childhood/report/childhood-volume1-report.docx.

[15] Australian Bureau of Statistics. 2024. Barriers and Incentives to Labour Force Participation, Australia, www.abs.gov.au/statistics/labour/employment-and-unemployment/barriers-and-incentives-labour-force-participation-australia/latest-release.

[16] Productivity Commission. 2024. A path to universal early childhood education and care, Inquiry report no. 106, Vol. 1, Canberra, p.73, www.pc.gov.au/inquiries/completed/childhood/report/childhood-volume1-report.docx.

[17] Ibid. p10

[18] Australian Government Department of Education. 2022. 2021 Early Childhood Education and Care National Workforce Census, www.education.gov.au/early-childhood/resources/2021-early-childhood-education-and-care-national-workforce-census-report.

[19] Australian Bureau of Statistics. 2021. Aboriginal and Torres Strait Islander people with disability, www.abs.gov.au/articles/aboriginal-and-torres-strait-islander-people-disability.

[20] Productivity Commission. 2024. A path to universal early childhood education and care, Inquiry report no. 106, Vol. 1, Canberra, p.21, www.pc.gov.au/inquiries/completed/childhood/report/childhood-volume1-report.docx.

[21]Data on ECEC workforce composition is adapted from the 2021 Early Childhood Education and Care National Workforce Census, available at: www.education.gov.au/early-childhood/resources/2021-early-childhood-education-and-care-national-workforce-census-state-and-regional-data-table 

[22] OIA information on default work-related labour rates is available in Appendix 2 of the Regulatory Burden Measurement Framework, available at: https://oia.pmc.gov.au/sites/default/files/2024-02/regulatory-burden-measurement-framework.pdf

[23] Time estimates have been based off the Standards professional learning modules made available on the Nationally Consistent Collection of Data website, www.nccd.edu.au/professional-learning/disability-standards-education-early-childhood-prior-school.

[24] Nationally Consistent Collection of Data on School Students with Disability, Disability Standards for Education for early childhood (prior to school), www.nccd.edu.au/professional-learning/disability-standards-education-early-childhood-prior-school.

[25] Data on ECEC students (0-12 years) is adapted from the Department of Education 2021 Early Childhood Education and Care National Workforce Census State and Regional Data Table:, available at: www.education.gov.au/early-childhood/resources/2021-early-childhood-education-and-care-national-workforce-census-state-and-regional-data-table and the December quarter 2023 data tables, available at: www.education.gov.au/early-childhood/resources/december-quarter-2023-data-tables 

[26] OIA information on default non-work-related labour rates is available in Appendix 2 of the Regulatory Burden Measurement Framework, available at: https://oia.pmc.gov.au/sites/default/files/2024-02/regulatory-burden-measurement-framework.pdf

[27]This assumption is based on information developed specifically for this audience and purpose.

Professional learning, NCCD portal, www.nccd.edu.au/resources-and-tools/professional-learning/format/e-learning-5.
Information resources for students with disability and their caregivers, Department of Education, www.education.gov.au/disability-standards-education-2005/information-resources-students-disability-and-their-caregivers.

[28] Figure based on data on the Australian Government Disability Gateway website, www.disabilitygateway.gov.au/legal/advocacy. Assuming one hour per person per organisation at a rate comparable to that of ECEC staff, would lead to $3912.