Spotlight on inclusion: Understanding the legal obligations and opportunities for your service

By Janelle Gallagher, CELA Early Education Specialist 

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Brief snapshot:

All children’s education and care services (including family day care) are legally required to comply with the Disability Discrimination Act, however the Child Care Package Evaluation completed by the Australian Institute of Family Studies last year found that discriminatory practices were occurring for children with additional needs.¹ 

The Early Years Learning Framework V2.0 has been updated to include the principles of equity, inclusion, and high expectations, further showcasing the importance of inclusion in early education and care.  

There are two types of discrimination to be aware of, and services are legally required to avoid both types: 

1. Direct discrimination happens when a child is treated differently because of their disability. 
2. Indirect discrimination happens when a policy has an unfavourable impact on a child with a disability.  

Being inclusive is transformative and should be a team effort. In order to set all children up for success, it’s important that the service is prepared well in advance and is ready for the child and family on their first day. It’s also vital that all educators understand their obligations under the Disability Discrimination Act, know what the centre’s policies and practices are and understand that they should not discriminate. 

Reasonable adjustments must be made to ensure a child with a disability can participate equally in the service. Examples of reasonable adjustments include adjusting the layout of equipment and learning areas, using visual supports, and accessing additional support or resources. 

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The importance of inclusion in ECEC 

The recently updated Early Years Learning Framework V2.0 expands on the original principle of high expectations and equity to include the principles of equity, inclusion and high expectations. The expansion of this principle to include a focus on inclusion highlights that all children should have the right to participate in quality and inclusive early childhood settings, regardless of their circumstances, strengths, gender, capabilities, or diverse ways of doing and being.  

The Disability Discrimination Act 1992 (legislation.gov.au) is a key piece of legislation that protects the rights of children with diverse abilities.  The National Quality Framework and the Disability Discrimination Act promote inclusion through intentional early childhood programs, practices, and policies. All children’s education and care services (including family day care) must comply with the Disability Discrimination Act.  

A subtlety which may be leading to confusion in the sector is the Disability Standards for Education which are subordinate to the DDA but do not include childcare. The 2020 Review of the Standards noted this was an anomaly and emphasised that early childhood education services are still subject to the Disability Discrimination Act.² 

What does discrimination look like? 

The Evaluation of the Child Care Package found that 11.7% of the sector reported declining the enrolment of a child due to not being able to accommodate their needs.³ The report goes on to say: 

“Quantifying the actual extent of these types of exclusionary and discriminatory practices is difficult. However, in this survey 85.4 per cent of the inclusion professionals surveyed agreed with the proposition that 'some services avoid accepting children with additional needs'...”⁴ 

If we unpack the definition of inclusion and participation it is evident that services must have participatory policies, procedures, and practices embedded into the early childhood education program. Inclusion is the practice or policy of providing equal access to opportunities and resources for people who might otherwise be excluded or marginalised, such as those who have physical or intellectual disabilities and members of other minority groups. While participation is the action of taking part in something.  

Researcher Karen Watson in her book Inside the Inclusive Classroom — the power of normal, argues “participation in the classroom comes with constraints and limitations for those who are othered (children with a disability). For the normal it seems, participation is taken for granted. In early childhood classrooms, the other is expected to conform and their participation is often dependent on compliance.” (p.198) 

We can look at discrimination under two headings.  

1. Direct discrimination happens when someone with a disability is treated less favourably because of their disability. It can also occur when a person fails to make reasonable adjustments to allow a person with a disability to be treated as favourably as a person without a disability. Some examples include: 

• a child’s enrolment not being accepted because of their disability.

• a child not being invited to participate in an excursion because of their disability  

• a child’s participation in the educational program and/or experiences being limited due to their disability (for example setting up experiences such as water activities or cooking in ways that a child with disability support equipment cannot access)  

• a provider prevents a child from attending the service or participating in an activity because of the child’s disability 

2. Indirect discrimination can occur when a rule or policy that is the same for everyone has an unfavourable impact on a person with a disability. In particular, it could occur when a child in ECEC services could not [meet a requirement necessary to] participate in an activity because of their disability or would be able to [meet that requirement] if reasonable adjustments were made. Some examples include: 

• a requirement for children to meet identified developmental milestones before enrolment is accepted 
• a requirement for all children to be independent in their toileting before they can enrol in a service or in a specific room, for example, the preschool room. 

If a child with a disability was unable to meet the requirements described in the examples above because of their disability, these policies may be indirectly discriminatory (ACECQA, 2022). 

Discrimination does not have to be intentional to be unlawful and includes the failure of a service to make reasonable adjustments. 

What are reasonable adjustments? 

Reasonable adjustments are changes to a policy, practice, procedure, program or environment that enables a person with disability to access and participate in the service on the same basis as others. An adjustment will be deemed reasonable unless the provider can show that making the adjustment would impose an unjustifiable hardship on them. A failure to make reasonable adjustments can result in discrimination occurring against a person with a disability under the DDA. Consultation with families, carers and children will support the identification of an appropriate reasonable adjustment.

Examples of reasonable adjustments could include:  

• Adjusting the layout of equipment and learning areas so that there is enough space for a child to easily move around with a walking frame. 

• Using visual supports so that children can make choices and understand and follow the daily routine.  

•  Educator(s) and children learning Auslan, so that they can communicate with children or families who use Auslan (for example children with a hearing impairment).  

• Developing strategies to support the sensory needs of children with Autism Spectrum Disorder, including when going on excursions or managing daily transitions. 

• Accessing additional support or resources so that the needs of all children can be met.  

• Making adjustments to the daily routine such as allowing extra time for transitions or minimising extended group time experiences.

• Tailoring each child’s assessment of learning to meet individual needs.  

(ACECQA, 2022) 

How do I make reasonable adjustments?  

Making informed decisions about what reasonable adjustments to make in the early childhood setting requires collaboration and intentionality and must consider the needs and expressed wishes of the child and the family or carer.  

Consider how the child’s disability impacts their ability to access and participate in the early childhood education program and whether the adjustments will enhance the child’s access and participation on the same basis as a child without a disability.  

Identify the barriers preventing access and participation in your service, for example, gardening. Introduce raised garden beds, create wheelchair pathways, provide suitable seating for children in sand pits, etc.  

In the case of a neurally diverse child, a service should work to understand what the needs and frustrations are for the child. This could include understanding their feelings towards environmental elements such as temperature, light and uncomfortable seating. Consider having quiet spaces available for all children to access to ensure inclusion rather than exclusion. Provide sensory aids, review seating options and make room for movement. 

Planning is essential 

In order to set all children up for success, it’s important that the service is prepared well in advance and is ready for the child and family on their first day. It takes time to understand what is required, and to build a relationship with the child. It is important the child feels safe and secure within your service.  

The inclusion of children with disabilities in early childhood education has gained universal support in recent decades. Access to funding has often resulted in an additional educator being employed where the child is shadowed and effectively separates the child from their peers. All too often teachers in the room view the child’s inclusion as an add-on to their already chaotic schedule. With careful planning, critical reflection and enactment, inclusion and full participation can be the reality for all children. 

Being inclusive is transformative — it’s a team effort that will probably require training

It's vital that all educators understand their obligations under the Disability Discrimination Act. Educators must know what the centre’s policies and practices are and be aware that they should not discriminate, and services should update their websites and any handbooks informing families of their policies.    

Look for opportunities to train existing staff in areas that could allow you to be inclusive for a wider range of children of all abilities. 

I don’t believe there is any case for not enrolling a child. My experience is if you can dream it, you can do it. I have enrolled many children with many disabilities — some very complex. I was blessed to have a team who moved heaven and earth to ensure every child’s early childhood education was, if not perfect, certainly close to it.  

I'm still in touch with many families who entrusted me with their children and the success stories are incredible. The impact we can make, working with families and professionals, to support children with additional needs, is enormous and often transformative. For example, I recall receiving many phone calls from families asking if their child could be enrolled in our preschool because their child was not toilet-trained. Our response was that every child was welcome because not all children will be toilet-trained by a specific age, and that's okay.    

Reflective Questions  

An important question to reflect on is how you can suitably train staff so that you do not need to say no to children with additional needs.

Below are some additional questions that may assist teams to begin their journey of unpacking current practices which may unintentionally be viewed as discriminatory (Source: ACECQA) 

• How do we ensure children with disability and their families feel welcome and included? 

• How do we provide opportunities in our program to promote respect for diversity and value the contribution of children with disability? 

• How can we meet our obligations under the Disability Discrimination Act 1992, including making reasonable adjustments to our program, practices, and assessment of children’s learning to focus on the individual strengths of children with disability? 

• How does our service collaborate with a child and their family to ensure they feel confident to share information about the child’s wellbeing and personal support needs? 

•  How do we support and promote the health and physical activity of children with disability in our service?  

• How are we aware of, and acting on, our responsibilities for ensuring children’s safety at all times, including identifying and responding to children at risk of abuse or neglect? 

• How does our environment support the access and participation of all children and families, including those with disability?  

• How do we continue to identify possible barriers to participation and address these through making reasonable adjustments?  

• How do we ensure our environment is inclusive and promotes play-based learning, including the provision of quiet spaces and sensory resources? 

• What strategies or professional development can we use to build educators’ knowledge, skills and confidence in supporting children with disability? 

•  How do our staffing rosters and arrangements support continuity of care and positive experiences for all children?  

• How will we make decisions that promote access and participation of children with disability? 

• How do we promote the dignity and rights of children with disability?  

• How do we build meaningful and trusting relationships with and between children of all ages, abilities, genders and backgrounds?  

• What strategies can we use to support children to recognise and challenge bullying and discrimination? 

• How can we build and maintain meaningful partnerships with all families and involve them in decisions about their child’s learning, participation and wellbeing? 

•  How do we identify opportunities to make reasonable adjustments and collaborate with community partners to enhance children’s inclusion, learning and wellbeing? 

•  How do we foster positive relationships with our community to support the inclusion, well-being and continuity of learning for all children, including ensuring effective communication during transitions? 

• How do we increase awareness of the Disability Discrimination Act 1992 to address barriers for children with disability? 

•  How can we strengthen our service philosophy to promote the access and participation of children with disability on the same basis as other children? 

•  How do our policies and procedures inform our decision-making and practice to include and support children with disability? 

(ACECQA  NQS &  DDA Poster 2022) 

ACECQA has some resources around inclusion in early childhood and outside school hours settings here 

References 

1. Australian Institute of Family Studies (2021) “Child Care Package Evaluation: Final Report” p202

2. Australian Government Department of Education - Summary Document - 2020 Review of the Disability Standards for Education 2005

2. Belonging, Being & Becoming, The Early Years Learning Framework V2.0 (ACECQA 2023) 

4. Australian Institute of Family Studies (2021) “Child Care Package Evaluation: Final Report” p203

5. Ibid