Victorian Disability Discrimination Payouts

The Age recently reported that, over the past few years, the Department of Education and Training Victoria (DET) has paid out more than $250,000 in total to students with a disability, who claimed to have experienced discrimination in the Victorian state school system. Students are alleged to have been “locked in time-out rooms, physically restrained, bullied and struck in the throat”, and to have been denied access to a full academic curriculum. Some have only been permitted to attend school part-time, while others have been prevented from enrolling at mainstream schools.

In one such case, a mother took legal action on behalf of her son, who had autism and had experienced emotional meltdowns at school. The mother claimed that her son had been repeatedly restrained by teachers, locked in a small room at the school, and also punched in the throat by a taekwondo teacher.

The DET denies the majority of the discrimination allegations, suggesting that many allegations were “cut and pasted” from previous cases, and that many cases were settled due to the expense associated with defending legal proceedings in court and the fact that litigation could negatively impact student attendance, participation and overall wellbeing. However, disability advocate Julie Philips stated that the similarities between cases is probably true because it was “the same thing happening over and over again”.

The Situation Elsewhere

Federal Court statistics appear to show that Victoria has had more of these kinds of cases involving an education department than any other Australian jurisdiction – there have been 19 such cases since 2015, compared to four in New South Wales and one in South Australia.

Other statistics paint a different picture, suggesting that the situation is not unique to Victoria. In NSW schools, complaints of physical misbehaviour, and sexual misconduct, by teachers and other staff, towards children with special needs or disabilities are claimed to have nearly tripled over the past two years. More than 650 complaints were made last year, including 375 complaints about physical misbehavior.  These included allegations of teachers “dragging a child across the room, locking them in a cupboard, twisting their arms until children scream in pain”.

In a report released by the NSW Ombudsman in August 2017, it was found that the use of isolation with minimal oversight and physical restraints of students remain prevalent at both government and non-government schools.

A parliamentary inquiry into the education of students with a disability or special needs in NSW handed down its findings in September 2017, making similar conclusions. The inquiry’s report highlighted numerous submissions outlining serious abuse suffered by students, including “caging and isolation ... in a blackened out cupboard”, as well as head injuries, unexplained bruising and permanent scarring. The report also found issues in relation to how school authorities handled these types of complaints, with some urging for a change in culture.

Disability Discrimination

Schools have a responsibility to maximise learning outcomes and wellbeing for all students and ensure access to high-quality education that is free from discrimination.

Under the Disability Discrimination Act 1992 (Cth) and the Disability Standards for Education 2005 (Disability Standards), schools are required to provide additional support, or to provide adjustments to teaching, learning, and assessment activities for students with a disability. As discussed in our previous School Governance article, this legislative framework is governed by the ‘same basis’ concept, meaning that treatment of students with a disability must be on the ‘same basis’ as students without a disability. Guidance on professional learning developed by the Federal Department of Education promotes making reasonable adjustments as part of a personalised learning plan.

If a school fails to apply the ‘same basis’ concept appropriately – such as by restricting a disabled student from attending school full-time or applying restrictive measures without consideration of alternative behavioural controls – they may be in breach of disability discrimination laws. Under the Disability Discrimination Act, it is illegal to discriminate against a person with a disability, on the basis of their disability, in the area of education.

Each jurisdiction has also enacted anti-discrimination legislation, which may also be breached by failure to apply the ‘same basis’ concept.

For example, if a Victorian school requires a student to submit to restrictive practices to continue being enrolled at the school, then under the Equal Opportunity Act 2010 (Vic), this might be seen as an "unreasonable requirement or condition" that disadvantages them because of their disability. Whether a requirement or condition is reasonable depends on the circumstances, including whether the action was proportional to its aim, and whether an alternative approach would achieve the same result. Under the Equal Opportunity Act, a school can discriminate against a student with a disability in such a way if this is necessary to protect the immediate health or safety of any person, but this does not apply to strategies for general behaviour control. There are also some situations in which a student’s rights under the Act would be overridden by other laws, in particular related to the health and safety of school staff.

Under the Western Australian Registration Standards and Requirements, there is a specific standard for Management of Students’ Behaviour, which requires that all students receive positive guidance and encouragement towards acceptable behaviours, and that any discipline or punishment conforms to the principles of procedural fairness and the prohibition of unlawful discrimination.

Restraint and Assault

As discussed previously on School Governance, there may be instances in which school staff may be required to intervene or physically restrain students, which according to a NSW Department of Education Legal Issues Bulletin include:

• the behaviour of a student threatens the safety of other persons
• the behaviour may lead to self-harm or injury
• physical altercations between students
• students leaving premises without authorisation.

But while physical restraint may be necessary to uphold a school’s duty of care, restraint of students without consent may constitute an assault. Corporal punishment, when it was an accepted and legally permissible practice, would have enabled teachers alleged to have committed assault against a student to argue it was justified on the basis that they were using reasonable force to discipline or correct the child. However, in nearly all Australian jurisdictions the practice of corporal punishment is specifically prohibited, either by legislation, regulation or departmental policy. Refer to our previous School Governance article for more information.

Some jurisdictions have specifically legislated on the ability of school staff to restrain students. For example, regulation 38 of the School Education Regulations 2000 (WA) states that a member of staff in a government school, may take “physical action as is reasonable” to prevent or restrain a person (such as a student) at the school from acting in a manner which places at risk the safety of the student or other person, or damaging any property. However, how this would work in a behaviour management context for students with special needs, or whether physical isolation would be considered "reasonable", is unknown.

The Australian Capital Territory has gone a step further and introduced legislation specifically dealing with the minimisation of "restrictive practices". Under the Senior Practitioner Act 2018 (ACT), which commenced on 1 September 2018, a provider of services to people with behaviour that causes harm to themselves or others (such as a school with special needs students) must take into account certain principles in the provision of those services. This legislation was introduced as part of special education reforms in the wake of the 2015 ‘autism cage scandal’, in which a primary school student was placed into a purpose-built cage made from metal pool fencing.

Under the Senior Practitioner Act, a "restrictive practice" is a practice used to restrict the rights or freedom of movement of a person for the primary purpose of protecting them, or others, from harm, and includes seclusion as well as verbal directions or gestural conduct of a coercive nature. Under the legislative principles, restrictive practices must also only be used as a last resort. They must also only be used in a manner that is consistent with a positive behaviour support plan; from 1 July 2019, it will be an offence to use a restrictive practice which is not permitted under such a plan.

What Can Schools Do?

Schools must have clear behaviour management policies and procedures in place for students who breach the school’s code of conduct, including a statement on the school’s commitment to procedural fairness and the abolition of corporal punishment. These policies and procedures should also include clear guidelines for when measures such as physical restraint may be permissible, while also prohibiting all forms of unlawful discrimination.

It is also of paramount importance to ensure that Individual Education Plans have been implemented for students that have particular behavioural or welfare needs, to ensure that classroom, playground or other accommodations are made that enable relevant students to function optimally.

A key finding of the NSW Ombudsman's recent report was that there is limited expertise among school staff with respect to dealing with students with behavioural issues. With this in mind, schools should also implement induction training and professional learning opportunities for staff, teachers and school executives on behaviour management. As a measure of compliance with the Disability Standards, such training should also cover rights and responsibilities in maintaining an environment free from harassment and victimisation on the basis of disability, and how to detect and deal with harassment in education and training settings.