Unpacking the Disability Discrimination redress models for South Australian & Victorian students with disability-related challenging

Unpacking the Disability Discrimination redress models for South Australian & Victorian students with disabilityrelated challenging behaviour

ELPITHA (PETA) SPYROU, PHD CANDIDATE, SESSIONAL ACADEMIC STAFF MEMBER AT ADELAIDE LAW SCHOOL, UNIVERSITY OF ADELAIDE

Education leads to better life outcomes both for individuals, as well as society generally. Although there are clear educational benefits, most Australian jurisdictions ascribe legal value to it through compulsory schemes. Despite this, students with a disability have additional protections under state, territory and federal equal opportunity or anti-discrimination frameworks. My PhD investigates the operation of the laws and resolution processes applicable to South Australian and Victorian primary and secondary students with disability-related challenging behaviour. Accordingly, I have reviewed four Acts: 1. the Equal Opportunity Act 1984 (SA) (SA Act); 2. the Equal Opportunity Act 2010 (Vic) (Victorian Act); 3. the Disability Discrimination Act 1992 (Cth) (DDA) and; 4. the Australian Human Rights Commission

Act 1986 (Cth) (AHRC Act).

Arguably these laws operate similarly because they protect aggrieved persons who have a protected attribute, i.e. disability, from unlawful discrimination in relation to specific areas of public life, such as education. However, a closer examination of the statutes shows differences in how they work. Other distinguishing features have come to light through interviews I have conducted.

This article compares how these complaints are handled at the equality bodies.1 This may help parties choose whether to make a complaint at either the state or federal level.

LEGAL PROTECTIONS

1. A disability 2. An applicable duty-bearer 3. The treatment is prohibited and no exemption applies (alleged discrimination) 4. The alleged discrimination is either

‘direct’ or indirect discrimination

While these elements are common across the frameworks, there are variations in definitions and scope.

Disability

The statutory definitions of disability appear to be broad but not all expressly apply to ‘behaviour’. Complaints made to the SA OCEO about students with disability-related challenging behaviour must apply the High Court case of Purvis v NSW (Purvis).2

Purvis was a direct disability discrimination complaint brought under the DDA and on behalf of Daniel Hoggan, a young person who sustained a brain injury when he was an infant.3 The symptoms of Daniel’s injury meant that he became violent when stressed or anxious. While this is a controversial case because of how the majority characterised direct discrimination, (see below), Gummow, Hayne, Heydon, McHugh and Kirby JJ agreed that the DDA definition of disability includes ‘behaviour that is as a result of disability’.4

Following this 2003 HC decision, the Victorian and federal parliaments amended their Acts to include an explanation that disability includes behaviour that is a manifestation or symptom of a person’s disability. No such clarifying provision exists in the SA Act.

Most complaints within my study are about primary school-aged students with autism spectrum disorder (ASD). Many also have additional disabilities or learning needs. Duty-bearer

All Acts apply to government and non-government schools alike, as well as individual teachers, school principals or overarching governance bodies, such as education departments. This is because they satisfy the definitions of ‘educational authority’ or ‘educational institution’.5 The DDA also binds ‘an organisation whose purpose is to develop or accredit curricula or training courses used by other education providers’ which are not otherwise captured within the DDA definitions of educational authorities or educational institutions.6

For simplicity purposes this article uses the word ‘school’ to reflect the dutybearer.

Alleged discrimination

Only certain conduct is unlawful discrimination. For this to be established, the treatment must be prohibited, an exemption cannot apply, and it must also be characterised as direct or indirect discrimination.

The prohibitions are designed to protect both aspiring and continuing students. For students seeking enrolment, schools cannot make discriminatory ‘admission decisions’ or provide enrolment on discriminatory terms.7 A unique feature of the Victorian Act is its additional application to how the admission decision is made,8 however, this may offer little protection given such deliberation processes are confidential.

The prohibitions also prevent schools from discriminating against existing students by limiting or denying the student access to a benefit; expelling; or otherwise subjecting them to another detriment.9 The SA Act also expressly applies to the ‘terms or conditions’10 regarding

the student’s ongoing enrolment but it is possible that this is captured by the ‘another detriment’ element within the Victorian Act and DDA.

A commonly complained about treatment from matters within my study is the school refusing to allow the student to attend excursions, including camps. This may constitute a ‘denial of access to a benefi t’.

A fundamental difference between the frameworks is the Victorian Act’s inclusion of a standalone positive obligation.11 This means that Victorian schools must take active steps to make ‘reasonable adjustments’ to accommodate the needs of the student with disability, with reasonableness being defi ned by ‘all relevant facts and circumstances’. This standalone nature is more powerful than the reference to ‘reasonable adjustments’ within the DDA. There are, however, differing opinions regarding the interpretation of what amounts to a reasonable adjustment.

While the DDA requires duty-bearers to make ‘reasonable adjustments’, this requirement is contained within the direct and indirect discrimination provisions. This has caused courts to interpret these sub-provisions narrowly. The SA Act also provides that unlawful discrimination includes the failure to provide ‘special assistance or equipment’ which is a reasonable requirement of the person’s disability.12

The stand-alone nature of the positive Victorian obligation might mean it is easier for parents to mount a disability discrimination complaint given schools are required to take active steps to accommodate the student. In practical terms, this has meant that students have been allowed to attend the school camp if attending with a support worker or SSO. In other successfully conciliated matters, a reasonable adjustment was a student with challenging-behaviour being prevented from attending the overnight portion of the camp but participated in the day-time activities.

Another difference between the Acts is the existence of the Disability Standards for Education 2005 (Cth) – subordinate legislation under the DDA. The standards provide guidance about the operation of the prohibitions against discrimination in education under the DDA. They also impose a positive obligation on dutybearers to ‘reasonably accommodate the needs of a student with a disability’.13 While this duty exists, the standards also operate as a complete defence for schools. A respondent school can seek to rely on the compliance measures set out by the standards as a defence to a discrimination claim.14 This dual purpose has caused academics to argue that the educational standards are both a shield and a sword in relation to an unlawful discrimination claim.15

Other exceptions

The SA Act and DDA allow schools to discriminate against students with a disability if it would otherwise subject the school to a hardship which is unjustifi able.16 This is considered with reference to all relevant circumstances, including the nature of the detriment, effect of the disability and any fi nancial considerations.17

The Victorian Act also allows the school to set standards of behaviour which are created by considering the views of the whole school community. Section 86 of the Victorian Act allows duty-bearers to discriminate against the student if the treatment of the person is ‘reasonably necessary to protect the health and safety of any person … or property’.18

In practical terms, these ‘safety’ exceptions may make it diffi cult to argue that a student who has ASD and who is violent during periods of stress, should be able to attend the school camp.

Direct or indirect

In addition to the above, a complainant must also establish whether the treatment is either direct or indirect discrimination.

The SA Act and the DDA both defi ne direct discrimination as the duty-bearer treating the student ‘less favourably’ as a result of the person’s disability.19 These Acts apply the controversial ‘comparator test’ as established in the Purvis decision. Accordingly, a decision-maker needs to consider how the school would treat the person without the disability, but who behaves in the same way. If the dutybearer would treat the students identically, there is no direct discrimination.

In an attempt to address the signifi cant limitations associated with this comparator test, the Victorian parliament removed the comparator test for direct discrimination. Instead, Victorian complainants need to prove that the student has been treated ‘unfavourably’ because of their disability.20

Indirect discrimination occurs when a policy or condition appears to apply to all persons neutrally but instead negatively affects people with the disability.21 It must also be unreasonable in nature.22 The SA Act and the DDA require the complainant to prove these elements, whereas the Victorian Act reverses the onus of proof, shifting the burden to the respondent to prove that the condition or policy was reasonable.23

REDRESS MODELS

Irrespective of the severity of the student’s disability or the treatment inflicted on them, all frameworks contain mechanisms to help complainants seek redress for breaches of the Acts. Each Act does so through an individualised model, meaning the person aggrieved, or their supporter, must bring a complaint themselves. While the student is technically the complainant, or aggrieved person, students in my research are generally represented by their parent, or other gardian, given they are under legal age.

Parents seeking redress under the SA Act or federal ones24 must first lodge a complaint in writing to the Office of the Commission for Equal Opportunity or the Australian Human Rights Commission respectively. The use of these bodies may be deemed a ‘compulsory’ step because it is a precondition to tribunal or court access. The Victorian Act operates differently– Victorian complainants choose whether to initiate a written complaint with the Commission or with the tribunal directly. Figure 1 below illustrates these redress models.

As the diagram shows, the SA Commissioner must refer matters to the South Australian Civil and Administrative Tribunal (SACAT) before tribunal access is granted. Interestingly, the SA Commissioner ‘must make all reasonable endeavours to resolve the matter by conciliation’.25

Although there is no federal tribunal, complaints under the DDA may progress from the AHRC to the Federal Court of Australia.26 This occurs in limited situations, including where the President of the AHRC terminated the complaint.27 Depending on the termination reasons, the court may need to grant leave before an application is made.28 Applications also need to be filed with the court within 60 days of the AHRC’s termination.29

Regardless of the compulsion to use equality bodies, they respond to complaints similarly— To lodge a complaint, the person aggrieved, or their representative, generally completes an online form. The forms ask for: • The complainant’s details or details of the person whom the complaint relates; • The respondent’s details; • The particulars of the complaint; and • Statistical information about the aggrieved person, including their age, ethnicity and whether they speak

English.30

The SA Act requires complaints to be lodged within 12 months of the alleged discrimination,31 but the Commissioner has the discretion to extend this timeframe upon application.32 The Victorian Act allows a complaint to be terminated if it was made more than 12 months after the alleged discrimination occurred.33 The AHRC Act has a similar termination power but it may refuse if the complaint was lodged more than six months after the alleged breach occurred.34 Therefore, prudent South Australian and Victorian complainants would submit complaints to their state bodies within 12 months of the treatment, whereas complaints under the DDA should be made within six months.

Once received, staff from the bodies ‘investigate’ or ‘inquire’ into the complaint. This is a procedural step to determine whether the body may receive and respond to the complaint.

A strict doctrinal interpretation of the statutes suggests that complaints are resolved through different resolution processes. This is because the SA and AHRC Acts both prescribe ‘conciliation’ as the resolution method.

Rather than prescribing a process, the Victorian Act lists five principles of dispute resolution, including the focus on early, fair, and voluntary resolution methods, which complement the nature of the dispute; and promote the objectives of the Act.35

While this statutory interpretation is possible, my interviews reveal a different situation – all bodies resolve disability discrimination in education matters through conciliation but they do not define this process, ensuring a flexible application to individual matters. I also learnt that the AHRC has adopted a voluntary approach to its conciliation process. In doing so, the AHRC will not force the parties into a conciliation if one, including the respondent school, does not wish to participate. This is the approach taken at the Victorian Commission, but only the Victorian Act legally prescribes this voluntary dispute resolution process.

SOUTH AUSTRALIA DISCRIMINATION COMPLAINT

VICTORIA COMMONWEALTH

EQUALITY COMMISSION (OCEO) EQUALITY COMMISSION (VEOHRC) TRIBUNAL (VCAT) EQUALITY COMMISSION (AHRC)

TRIBUNAL (SACAT)

COURT (FEDERAL COURT)

SUMMARY

The below table summarizes the similarities and differences in the frameworks:

PROVISION

‘Behaviour’ in disability definition SA ACT

Apply Purvis

Duty-bearer Educational authority

Standalone positive duty to prevent discrimination N

Disability standards N

Prohibited treatment for aspiring students • Admission decisions • Discriminatory terms of enrolment VIC ACT

Included in statutory definition

• Educational authority • Educational institution

Y

N • How admission decision is made • Admission decisions • Discriminatory terms of enrolment CTH

Included in statutory definition • Educational authority • Educational institution • Educational provider

N

Y

• Admission decisions • Discriminatory terms of enrolment

Prohibited treatment for existing students • Limiting or denying access to benefit • Expelling • Terms or conditions for ongoing enrolment • Other detriment

Exemptions • Unjustifiable hardship

Direct discrimination Comparator test – less favourable treatment • Limiting or denying access to benefit • Expelling • Other detriment

• Behaviour standards • Protection of health and safety

Unfavourable treatment • Limiting or denying access to benefit • Expelling • Other detriment

• Unjustifiable hardship • Compliance with standard set-in disability standards Comparator test – less favourable treatment

Indirect discrimination • Appears neutral but negative affect on person with disability; and • Unreasonable

Complaint body OCEO • Appears neutral but negative effect on person with disability; and • Unreasonable – reverse onus of proof • Appears neutral but negative affect on person with disability; and • Unreasonable

VHREOC or VCAT AHRC Written complaint Y Y Y Time limit 12 months 12 months 6 months Conciliation Y Y Y Voluntary dispute resolution process N Y Y

Endnotes 1 The applicable bodies are the South Australian

Office of the Commission for Equal

Opportunity; the Victorian Equal Opportunity and Human Rights Commission; and the

Australian Human Rights Commission. 2 (2003) 217 CLR 92. 3 Ibid. 4 Ibid. 5 Equal Opportunity Act 1984 (SA) s 5; Equal Opportunity Act 2010 (Vic) s 4; DDA s 4. 6 DDA s 4. 7 Equal Opportunity Act 1984 (SA) s 74(1)(a) and (b); Equal Opportunity Act 2010 (Vic) s 38(1)(b) and (c); DDA s 22(1)(a) and (b). 8 Equal Opportunity Act 2010 (Vic) s 38(1)(a). 9 Equal Opportunity Act 1984 (SA) s 74(2); Equal Opportunity Act 2010 (Vic) s 38(2); DDA s 22(2). 10 Equal Opportunity Act 1984 (SA) s 74(2). 11 Equal Opportunity Act 2010 (Vic) s 15. 12 Equal Opportunity Act 1984 (SA) s 66(d) (i) and (ii). 13 CRPD/C/AUS/1 citing the standards which are available online at: <http:// www.ag.gov.au/www/agd/agd.nsf/Page/

Humanrightsandanti-discrimination_

DisabilityStandardsforEducation>. 14 DDA ss 32 and 34. 15 Elizabeth Dickson, ‘Disability Standards For

Education 2005 (Cth): Sword or Shield for

Australian Students with Disability?’ (2014) 19(1) International Journal of Law and Education 5. 16 Equal Opportunity Act 1984 (SA) s 84; DDA s 11. 17 Ibid. 18 Equal Opportunity Act 2010 (Vic) s 86(1)(a) and (b). 19 Equal Opportunity Act 1984 (SA) ss 6(3) and 74; DDA s 5. 20 Equal Opportunity Act 2010 (Vic) s 8. 21 Equal Opportunity Act 1984 (SA) s 66(b); Equal Opportunity Act 2010 (Vic) s 9; DDA s 6. 22 Ibid. 23 Equal Opportunity Act 2010 (Vic) s 9(2). 24 See Australian Human Rights Commission Act 1986 (Cth) and Disability Discrimination Act 1992 (Cth). 25 Equal Opportunity Act 1984 (SA) s 95(1). 26 Australian Human Rights Commission Act 1986 (Cth) Pt IIB Div 2. 27 Ibid s 46 PO(1). 28 Ibid s 46 PO(3A). 29 Ibid. 30 Equal Opportunity Commission of South

Australia, ‘Complaints Form’ (PDF, date unknown) <https://eoc.sa.gov.au/sites/default/ files/inline-files/2019.11.06%20Complaint%20

Form%20GPO%20Exchange%20editsdocx_0. pdf>. Equal Opportunity Commission, ‘Making a Complaint’, (Web Page, 2020) <https:// eoc.sa.gov.au/what-discrimination/makingcomplaint>; Victorian Equal Opportunity and

Human Rights Commission, ‘Make a Complaint’ (Web Page) <https://makeacomplaint. humanrights.vic.gov.au/>; Australian Human

Rights Commission, ‘Make a Complaint’, (Web Page) < https://humanrights.gov.au/ complaints/make-complaint>. 31 Equal Opportunity Act 1984 (SA) s 93(2). 32 Equal Opportunity Act 1984 (SA) s 93(2a). 33 Equal Opportunity Act 2010 (Vic) s 116(a); Australian Human Rights Commission Act 1986 (Cth) s 32(3)(c)(i). 34 Australian Human Rights Commission Act 1986 (Cth) s 46PH(1)(b)(ii). 35 Equal Opportunity Act 2010 (Vic) s 112.

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