By Catia Malaquias
Australians with disability, including students with disability, experience high levels of discrimination in all areas of life, including education.
Data released by the Australian Human Rights Commission for 2018-2019 showed that 44% of all complaints it received were lodged under the Disability Discrimination Act 1992, with 25% under the Sex Discrimination Act 1984, 16% under the Racial Discrimination Act 1975, 7% under the Age Discrimination Act 2004 and 8% under the Australian Human Rights Commission Act 1986.
In the context of education, a series of Federal and State reports, reviews and academic research have corroborated widespread accounts of discrimination against students with disability in their access to general education. Discrimination, relative to the education of non-disabled students, can occur through:
- inadequate provision of reasonable accommodations and supports (including behaviour supports);
- ‘gatekeeping’ (to discourage enrolment or to encourage movement ‘elsewhere’);
- bullying and victimisation (and inadequately taking measures to address bullying and victimisation);
- punitive practices (including use of restraint and seclusion and the disproportionate use of suspensions and exclusions);
- simply poor ‘inclusive’ practice (including through insufficient training, upskilling and support for teachers and school principals and inadequate provision of information and support to families of students with disability); and
- denial of education in regular classrooms by maintaining and investing in the overarching systemic architecture of the parallel ‘dual’ system of general education and ‘special’ disability-based segregated education.
So far, Australia has failed to adopt a statutory disability discrimination regime that complies – fully or substantively – with Australia’s obligations under international human rights law, including under the United Nations Convention on the Rights of Persons with Disabilities (CRPD).
In particular, Australia’s main source of legal protection for people with disability, the Commonwealth’s Disability Discrimination Act 1992 (DDA), has failed to meet its objectives and has been shown not to be ‘fit for purpose’ in addressing disability discrimination in education.
In 2019, inclusive education academic Dr Kate De Bruin researched the impact of the DDA and the Disability Standards for Education 2005 made under the DDA (DSE), concluding:
‘While the DDA and DSE reforms have both supported the general aim of increasing the access of students with a disability to the regular education system, the data presented here clearly demonstrates that these reforms have failed to bring about important improvements in access to regular schools and classes for students with a disability (…) Although both the DDA and the DSE have led to a reduction in the rate of exclusion for students with disabilities, this rate remains concerningly high and the reforms cannot be considered to have successfully addressed the persistent issue of exclusion for this reason.’ (
For families seeking fast and effective remedies against disability discrimination in education, the lengthy compulsory conciliation process under the DDA places them at particular disadvantage. In many cases, even where a discrimination complaint is successful, by the time a decision is made, the student will have finished the relevant phase of primary or high schooling and moved on or the family would have decided to move them to another school or made alternative arrangements for their child’s education and mental health.
Furthermore, although the Australian Government claims the DDA implements Australia’s obligations under the CRPD in relation to disability discrimination, its limited protections do not align with key comparative concepts under the CRPD, such as the conceptualisations of ‘disability’, ‘equality’, ‘reasonable adjustments’ versus ’reasonable accommodations’ and ‘unjustifiable hardship’ versus ’undue burden’.
In the area of education, behaviour by students with disability – often those with cognitive or intellectual disability such as autistic students – that is perceived as ‘anti-social’, is a very fertile area for disability discrimination and yet anti-discrimination legislative protections are particularly and unfortunately weak for those students.
It is perhaps not surprising then that Dr De Bruin’s research also found that between 2009 to 2015 the inclusion of Australian autistic students in mainstream classes fell from 18.8% to 3.3% while their proportion in special schools increased from 37% to 52% and that ‘US students on the autism spectrum are about 13 times more likely to access their education within regular classrooms than their Australian counterparts’.
The Committee on the Rights of Persons With Disabilities also acknowledged, in its 2016 General Comment No. 4 on ‘The Right to Inclusive Education’ under Article 24 of the CRPD, the increased risk that certain groups face in trying to access education, noting that students with intellectual disability and autistic people are ‘more at risk of exclusion from education than others’ (see para 6).
Whether a cognitive difference, condition or impairment, in the sense of a general or temporary difficulty in self-regulating, for example, is implicated in a student’s behaviour in a school environment, including where behaviour is the student’s expression or communication of frustration or distress in the face of the incapacity or unwillingness of the school environment to accommodate and support the student, from the CRPD’s perspective a failure to provide that support and the student’s exclusion from a school, are likely to amount to disability discrimination.
The CRPD, which is built on the ‘social model’ of disability, characterises disability as arising from the interaction between a person’s impairment and their environment– rather than on the historically pervasive ‘medical model’ which sees disability as an impairment inherent to the individual. The CRPD recognises that disability ‘results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’.
Section 4 of the DDA adopts a pre-CRPD ‘medical model’ definition of ‘disability’ that characterises the ‘impairment’ as the ‘disability’; it refers to ‘a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour’ and, through an amendment in 2009, confirms that ‘behaviour that is a symptom or manifestation of the disability’ is included in the ‘disability’.
It is clear from the case law that Courts have been, at one level, preoccupied with determining whether the ‘anti-social behaviour’ is part of the ‘disability’ in a medical sense or a consequence of the school failing to accommodate and support the student. This ‘either or’ approach negates the complex and ‘interactional’ nature of ‘disability’ and paves the way for a flawed analysis of disability discrimination.
Further, too often, the inquiry into any environmental or contributing factors in the behaviour of students with disability is limited, superficial or non-existent – doctors, teachers and even parents are too quick to characterise behaviour as inherent to the student and to overlook the ‘interactional’ nature of disability, as involving the impairment interacting with the student’s schooling environment.
So when a school punishes a student with a disability for ‘anti-social behaviour’ – by expulsion, suspension, seclusion or detention etc – how does the DDA decide whether the school is ‘discriminating’ against the student because of their disability in taking ‘disciplinary’ or punitive action against the student?
Section 5(1) of the DDA poses the discrimination test in relation to a student with disability like this:
‘a [school] … discriminates against … [a student] on the ground of a disability of the … [student] if, because of the disability, the … [school] treats … the … [student] less favourably than the … [school] would treat a … [student] without the disability in circumstances that are not materially different.’
Since the High Court of Australia majority decision (3:2) in Purvis v New South Wales (2003) 217 CLR 92, this test has been applied by Australian courts by asking ‘why’ was the student with disability punished – what was the reason? – was it because of their ‘anti-social behaviour’ or because of their disability (read ‘impairment’) resulting in the ‘anti-social behaviour’. In doing so, incongruous with the ‘composite’ definition of ‘disability’ in section 4 of the DDA that recognises related behaviour to be part of the ‘disability’, the majority of the High Court determined the ‘reason’ by separating the related behaviour from the ‘disability’ (or impairment).
Put another way, the Courts now ask whether a student without ‘disability’ (without any cognitive factors that may contribute to ‘anti-social behaviour’) would have been similarly punished for the same ‘anti-social behaviour’ exhibited by the student with disability? If the Courts infer the answer to be ‘yes’, they say there is no discrimination on the grounds of disability as the non-disabled student would have also been so punished.
In a recent decision of the Federal Court of Australia, Connor v State of Queensland (Department of Education and Training) (No. 3) [2020] FCA 455, Judge Rangiah applied the majority view in Purvis in finding that the relevant school did not discriminate against the student on the basis of his disability:
‘Having found that … [X’s] formal suspensions were because of his behaviour, I infer that if a student without … [X’s] disability had engaged in similar behaviour, that student would also have been similarly suspended. Accordingly, I find that … [X] was not treated less favourably than a student without his disability would have been treated in the same circumstances.’
So although it is recognised by the DDA and the Courts that behaviour may be part of a student’s ‘disability’, when determining the question of ‘discrimination’ the Courts are effectively comparing:
- the schools’ disciplinary response to a student whose disability is implicated in or causative of their behaviour,
with
- the school’s anticipated or inferred response to the same behaviour if carried out by a student with no disability, who is not affected by the same factors that contribute to the disabled student’s actions, such as cognitive or communication impairment.
On this approach, the inference that there is no disability discrimination is reached by effectively negating the relevance of the relationship between the condition or impairment and the behaviour. The conclusion is automatic, and essentially renders such a ‘behaviour’-affected claim relying on the section 5(1) concept of ‘discrimination’ futile.
In effect, the Courts are interpreting the DDA as permitting the punitive response of a school to a student with a disability, where that disability includes ‘anti-social behaviour’, to be no different than it would be in the case of a non-disabled student whose capacity to refrain from ‘anti-social’ behaviour is not affected by disability.
That cannot be right from a policy or moral perspective and it is inconsistent with the concepts and principles of the CRPD.
We can’t be saying in the same breath that a person’s ‘anti-social behaviour’ is effectively a consequence and part of their disability, but then assess the appropriateness of the dispensed punishment for that automated behaviour as if the disability was not a relevant factor.
Rather, such a failure to allow or account for the disability and its impacts, including in particular environments, should as a starting proposition constitute discrimination on the basis of disability.
The narrow approach of the majority High Court judges in Purvis to disability discrimination under the DDA undermines the objectives of that important legislation – to eliminate discrimination of people with disability on the grounds of their disability. The minority High Court judges in Purvis readily recognised this inevitable eventuality in their dissenting judgment.
This problem was also recognised by the Australian Government when the DDA was amended in 2009, post Purvis. The then Attorney General, in inserting a new section 5(2) into the DDA, stated that the purpose was to ‘introduce an explicit and positive duty to make reasonable adjustments for people with disability’ and acknowledged that the decision in Purvis had necessitated confirming this positive duty – in essence the Australian Government acknowledged that the equality by ‘same treatment’ (that underlay the majority approach in Purvis to the section 5(1) disability discrimination test) would lead to inequitable outcomes and that a more substantive or fairer concept of ‘equality’ was required.
The perceived mitigating amendment, section 5(2) of the DDA, in the context of education, provides:
‘a … [school] also discriminates against a … [student] on the ground of a disability of the … [student] if:
- the … [school] does not make … reasonable adjustments for the … [student]; and
- the failure to make the reasonable adjustment has … the effect that the … [student] is, because of the disability, treated less favourably than a … [student] without the disability would be treated in circumstances that are not materially different.’
However, Australian Courts have come to ask, as a threshold question for the application of section 5(2) of the DDA, whether the relevant claimed disadvantage or less favourable treatment was ‘because of the disability’ (i.e. they are making the reason for the claimed disadvantage critical – whether it is because of the disability, rather than focussing on the effect of the claimed disadvantage on the person with disability).
In the case of ‘reasonable adjustments’ sought for a student in relation to ‘anti-social behaviour’ relating to cognitive or communication impairments, on this approach section 5(2) of the DDA does not “even the ‘equality’ playing field” as it was intended by the Commonwealth Parliament to do to overcome the ‘harshness’ of the majority approach in Purvis to the disability discrimination test in section 5(1).
Rather, the Purvis approach to excluding ‘anti-social behaviour’ relating to a ‘disability’ from the section 5(1) disability discrimination test has also been allowed to infect the mitigating impact of section 5(2), so as to exclude the same behaviour from the scope of the ‘disability’ in assessing the ‘reason’ for the claimed denied ‘reasonable adjustment’ or ‘less favourable treatment’.
In Connor Judge Rangiah, following a recent line of decisions of the Federal Court, easily disposed of the section 5(2) discrimination claim, based on the alleged failure of the school to make ‘reasonable adjustments’, without even having to formally consider the claimed ‘reasonable adjustments’ and whether they were or should have been made:
‘… I have found that … [X] was suspended from the School because of his behaviour, not his disability. He was therefore not discriminated against because of his disability. The claim under s5(2) of the DDA must fail for this reason alone.’
So for the purposes of the section 5(1) disability discrimination test, a student that exhibits ‘anti-social behaviour’ relating to a cognitive or communication impairment is assessed against the anticipated punitive action if the same behaviour had been carried out by a non-disabled student deliberately and in control of their actions. That’s clearly not fair.
Then, for the purposes of section 5(2), the provision’s intended mitigating benefit by placing the school under a positive obligation to provide reasonable adjustments to ameliorate ‘anti-social behaviour’ relating to the cognitive or communication impairment is also undermined – in fact often negated – if the claimed ‘less favourable treatment’ can be rendered irrelevant if the treatment can be characterised as being because of the ‘anti-social behaviour’ (so on the Purvis approach is not part of, and therefore because of, the ‘disability’). That is also unfair as it brings back into play the unfairness of the consequences of the Purvis approach to section 5(1), as section 5(2) is given not mitigating or ameliorating effect.
The Courts, based on their reading of the DDA, have effectively locked out students with disability-related ‘anti-social behaviour’ from the positive obligations of reasonable adjustment and anti-discrimination protection that should have been afforded by the DDA. That in itself is a very significant barrier to the implementation of inclusive education in Australian schools for many children with cognitive – including intellectual – disability that manifests from time to time in behaviour perceived as ‘anti-social’.
Further, these decisions may well, irrespective of State education departments recognising and warning of the logical difficulties with the approach of the Courts, reduce the incentive for schools to try, through reasonable adjustments, to include students with disability with ‘challenging behaviour’.
While it is likely inevitable that the judicial approach to sections 5(1) and 5(2) of the DDA will be judicially corrected and refined in time, there is an urgent need for section 5 and the DDA (and the DSEs) more generally to be legislatively reformed and in particular aligned with the framework and concepts of the CRPD – to provide an adequate legal framework for eliminating disability discrimination and a much more efficient complaints and time-proximate enforcement vehicle for the largest and worst addressed discrimination area in Australia. One cannot accept correcting the primary school education experience by the time the student has moved to high school.
In the meantime, the family that brought the unsuccessful claim against the Queensland Department of Education in Connor has been ordered to pay what will no doubt be the very significant costs of the State of Queensland for a long and strongly defended trial that lasted nine days and saw both the mother and father hospitalised during the process.
The Queensland Department of Education should ask itself whether, from a broader perspective, it is appropriate that it seeks and enforces its litigation costs against the family.
Here is one paragraph from the Judge’s summary of the mother’s evidence, a mother that the Judge found did everything she could to support her child’s education:
‘On 13 March 2015, … [the mother] was called to the School because … [X] was misbehaving. She saw that … [X] was in a little room huddled over in the corner curled up in a little ball. She asked … [X] what had happened and he mentioned that it was the bullying again. She said that as she had been crouched over and speaking to … [X], someone walked past and closed the door. It was locked. The windows were painted black and some of the windows were boarded up. She said that she yelled for someone to let her out, but … [X] said something to the effect, ‘Don’t do that, they won’t come and open the door.’ … [X] said he was locked in the room every day. After 20 minutes, she called the office using her mobile phone and someone unlocked the door. She said the woman who unlocked the door, said ‘Oh we just thought it was … [X] yelling.’
Unfortunately the Australian courts, in adopting, with some legislative persuasion, deficient concepts and contrived tests, have played their part in eroding disability discrimination protections under what was already structurally weak, limited and, as time has shown, flawed legislation.
The Purvis case is now nearly 20 years old. We have had long enough to realise that the DDA is not ‘fit for purpose’ and cannot fulfil its objectives of protecting Australians with disability from discrimination. It needs to be urgently comprehensively reviewed, reformed and aligned to the CRPD so that the next generation have a fighting chance and a clear expectation of justice.