Suppor&ng Students with Disability: A Legal and Policy Perspec&ve
Tamworth 3 September 2013
Australians with Disability
“The four million Australians with disability, and the further 2.6 million Australians who care for family
member with disability, are among the most disadvantaged groups in Australian society”
COAG Reform Council 2010-‐11 report assessing progress under the National Disability Agreement
Current picture for an Australian with disability
(1 in 5 Australians)
Measure Person with disability Person without disability
Complete Year 12 30% 49%
Complete diploma or higher qual
14% 28%
Labour force parIcipaIon
54% 83%
Gross median weekly income
$306 $614
Living below or near poverty
45% 11%
(Source: ABS)
THE LEGAL CONTEXT
Nego&a&ng the Maze – The Legal Context
Legal Context
Common Law: o Duty of Care/Vicarious Liability o Procedural Fairness
Commonwealth legisla&on: o Age Discrimina&on Act 2004 o Disability Discrimina&on Act 1992 o Disability Standards for Educa&on 2005 o Family Law Act 1975 o Racial Discrimina&on Act 1975 o Sex Discrimina&on Act 1984
Legal Context � An&-‐Discrimina&on Act 1977 � Children and Young Persons (Care and Protec&on) Act 1998 � Commission for Children and Young People Act � Educa&on Act 1990 � Health Records and Informa&on Privacy Act 2002 � Government Informa&on (Public Access) Act 2009 � Industrial Rela&ons Act 1996 � Inclosed Lands Protec&on Act 1901 � Ombudsman Act 1974 � Public Finance and Audit Act 1983 � Public Interest Disclosures Act 1994 � Work Health and Safety Act 2011
Legal Context
v These laws grant rights
v They impose duIes and obligaIons
v Some laws (e.g. discriminaIon and privacy) apply to
parents as well
v The rights granted and duIes and obligaIons imposed
are not separate but co-‐exist
v One right, obligaIon or duty will not trump another
Key Factors When Balancing Legal ObligaIons
� Act reasonably
� Consult as required with student, parent, staff
� Document decisions
DOCUMENTING DECISIONS aka PROOF OF THE GOOD THINGS YOU HAVE DONE
Which is a Departmental Record?
Ø BlogEd posIng Ø CommunicaIon book Ø Counselling File Ø Diary entry Ø Email to Parent Ø Notes of a conversaIon Ø Post it note on student’s record Ø Photograph of a student Ø Report Card Ø RISC record Ø Student Record Card
Proof (Records Records Records)
Be Professional in Communica&on
(His) letter which at best can only be described as curious and at worst a classic example of bureaucratic equivocation which in its terms is duplicitous and exceedingly unhelpful for a parent concerned about the education of their child
Murphy v NSW Department of Educa&on [2000] HREOCA 14 (27 March 2000)
Proof (Records Records Records)
Create accurate records What seemed on paper to be very firm observations turned out in some cases to be hearsay accounts... or a mixture of the student’s fragmentary observations and things that he or she had heard .... Some witnesses.. gave, what seemed to be clear and unambiguous accounts that, on closer examination, could not be relied on because they were so at odds with what other witnesses claimed to have seen.
Inquest into the Death of Jai Morcom, 11 February 2011
Proof (Records Records Records)
Retain records It became apparent during the inquest that the record keeping and paper trail for approved walks was deficient….it is of concern that no documentation was ever kept by the school in regard to the (earlier) approved walk Inquest into the Death of David Iredale, 7 May 2009, paragraph 89
Daniel’s Story Daniel is 12 and has recently come to live with his father whose new partner has just had a baby. Daniel is currently in Year 6 and his father wants to enrol him in Year 7 in 2014. Daniel has diabetes, ADHD, ODD and an anxiety disorder. He was expelled from his previous non-‐government school for violence and has a history of persistent disobedience. He has been out of school for 6 weeks. The high school principal asks you to assist with Daniel’s transi&on to Year 7. What legal issues poten&ally arise in this situa&on? What factors should be taken into account when planning for Daniel’s learning and support needs? Would it make a difference if Daniel’s father was seeking to enrol him in Year 7 during Term 4 of 2013?
Poten&al Legal Issues
Ø Family Law Act orders hep://www.comlaw.gov.au/Details/C2013C00053
Ø under the NSW Children and Young Persons (Care and Protec&on) Act 1998 which provides at sec&on 23 that educa&onal neglect is one of the circumstances that could indicate a child is at risk of significant harm. InformaIon can be obtained about Daniel from his previous school under Chapter 16A
Ø under the Commonwealth Disability Discrimina&on Act which at sec&on 22 provides it is unlawful to discriminate against a student on the ground of his disability by refusing or failing to accept his applica&on for admission as a student
Poten&al Legal Issues imposed by the Disability Standards for EducaIon 2005 (which have the force of law) and which require schools:
Ø take reasonable steps to ensure that a prospecIve student is able to seek enrolment on the same basis as a student without a disability and without experiencing discriminaIon.
Ø consult with the student or an associate about whether the disability affects the prospecIve students ability to seek enrolment
Ø consider whether a reasonable adjustment is necessary to allow the student to enrol
Poten&al Legal Issues
§ under the Educa&on Act 1990 because Daniel is 12 and is of compulsory school age; and
§ under the Work Health and Safety Act 2011 – in par&cular the duty set out in sec&on 19 to ensure as far as is reasonably prac&cable the health and safety of school staff and students
Poten&al Legal Issues (include complying with policy)
� Daniel’s transi&on to Year 7 should be managed in accordance with the Year 6 2013 to Year 7 2014 transi&on process
� If Daniel is seeking to enrol during Term 4 the Learning Support Team/Student Welfare Team will have a significant role if the enrolment proceeds -‐ see Memorandum DN/11/00007.
Poten&al Legal Issues (include complying with policy)
§ The School Counsellor will also have a role in this situaIon – e.g. secIon 2.1.3 of the School Counsellors Manual.
§ PotenIal assistance with these legal issues can be found in the enhanced enrolment procedures
Disability Discrimina&on Act 1992
& Disability Standards for Educa&on 2005
Disability Discrimina.on Act 1992 Defini&on of Disability
q The presence in the body of organisms causing (or capable of causing) disease or illness – e.g. anaphylaxis
q A disorder or malfuncIon that results in a person learning differently e.g. dyslexia, language disorders
q A disorder, illness or disease that affects a person’s thought processes , percepIon of reality, emoIons or judgment or that results in disturbed behaviour e.g. a mental illness
q Behaviour that is a symptom or manifesta&on of the disability is included in the defini&on
� AuIsm � Inability to read � Expressive language disorder � Epilepsy � Anaphylaxis � Depression � ADHD � Persistent disobedience � Diabetes
Which is a disability?
Disability Discrimina.on Act 1992 Sec&on 5 – Direct Discrimina&on
Direct discrimina&on occurs if: § Because of his or her disability a school treats the student less favourably than a student without a disability would be treated in circumstances that are not materially different; and/or
§ the school does not make reasonable adjustments for the student and the failure to do this has or would have the effect that the student is treated less favourably than a student without a disability in circumstances that are not materially different. (Circumstances are not materially different because the student requires adjustments).
Disability Discrimina.on Act 1992 Sec&on 6 – Indirect Discrimina&on
Indirect discrimina&on occurs if: § a school requires a student to comply with an unreasonable requirement or condiIon; and
§ the student does not or would not comply with the requirement because of their disability; and
§ the requirement disadvantages the student.
Disability Discrimina.on Act 1992 Sec&on 6 – Indirect Discrimina&on
Indirect disability discrimina&on also occurs if: § a school requires the student to comply with an unreasonable condiIon; and
§ the student can only comply if the school makes reasonable adjustments but the school does not do so; and
§ the failure to make a reasonable adjustment disadvantages the student.
Commonwealth Disability Discrimina&on Act (DDA) And Disability Standards for Educa&on
Disability Standards for
Education 2005
Disability Standards for Accessible
Public Transport 2002
Disability (Access to Premises - Buildings)
Standards 2010
DDA Section 32: It is unlawful for a person to contravene a disability standard. If a person acts in accordance with standards they comply with the DDA.
DDA Section 31 - The Commonwealth Attorney General authorises the development of standards in relation to any area in which it is unlawful under
the DDA for a person to discriminate against a person on the ground of a disability.
Disability Standards for Educa.on 2005 The standards cover
– enrolment, parent choice – access and parIcipaIon – curriculum development, accreditaIon & delivery – student support services – eliminaIon of harassment and vicImisaIon
Ø The Standards require schools to treat students with disabiliIes on the same basis as students without disability.
Ø The Standards include obligaIons for making reasonable adjustments to student’s learning program and /or learning environment in reasonable Ime
Ø Parents and where appropriate students with disability must be consulted on the personal adjustments that will be provided
Ø The Standards require schools to develop strategies and programs to prevent harassment and vic&misa&on of students with disability
Trea&ng students on an equal basis doesn’t necessarily mean trea&ng them the same
Daniel’s Story con&nued.. � Daniel starts Year 7. His teachers report that he has difficulty in compleIng work in class unless a teacher works with him one on one. He is omen off task and refuses to go to the office to have his blood sugar levels tested.
� Daniel’s math teacher complains that he frequently drinks water in class even though she tells him not to. Daniel is placed on the orange level of the school’s discipline policy.
� Has Daniel been discriminated against? � Should any advice be provided to Daniel’s teachers?
Daniel’s Story con&nued…
It is decided that Daniel will not aeend the Year 7 camp. Mr Chips, who is coordinaIng the camp is also the Year 7 Year Advisor. He sends the following email to Daniel’s father: Dear…. Like the other students on the red level of the discipline policy Daniel won’t be going to the Year 7 camp. He needs to li@ his game and prove he can stay on task in order to be part of these kinds of acAviAes in the future. I googled and found some parenAng classes for you (see aDached). Hope this helps. Regards, Mr Chips Year 7 Advisor FacilitaAng InvesAgator for The Crop Knights. Bibliophile and Curator of the Hogwarts Library
Comment on this Email
Reasonable adjustments should be customised for the individual student
Managing Complaints
Daniel’s Story con&nued..
Daniel has conInued to be inaeenIve in class and has not completed his tasks on Ime. He is frequently rude to his teachers and was suspended from school for this Daniel’s father comes up to the school and is very angry. He goes up to the school counsellor and says “This is typical of schools. You ignore it when Danny is bullied but punish him when he stands up for himself” What advice could be given to Daniel’s teachers at this
point?
The Journey of a Complaint
� Student and teacher
� Child goes home to parent
� Parent speaks with the teacher
� Parent speaks with the principal
� Parent talks with staff in Public Schools office � Parent contacts the Minister or media � Parent seeks advocate/legal advice � Parent contacts an external authority
Parliament
Community
School
Legal avenues
External agencies
Student and
Parents
receive receive
delivers/monitor delivers/monitor
law maker
Parliament
Department
The Complex Matrix of Rela&onships
The Mul&ple Journeys Disability Complaints Can Travel
o Australian Human Rights Commission(AHRC) o AnI-‐DiscriminaIon Board (ADB) o Federal Court of Australia o NSW AdministraIve Decisions Tribunal (ADT) o Federal Circuit Court (formerly Federal Magistrate’s Court) o NSW District Court or Supreme Court o NSW Coroners Court o NSW Ombudsman o NSW Industrial RelaIons Commission o NSW Workers CompensaIon Court o Media including social media o Court of Public Opinion
Managing a Complaint
� Acknowledge its importance � Maintain professionalism � Listen and clarify details � Ensure fairness � Be empathic � Approach the problem with rigour � Ensure a transparent process for all
� All complaints have a journey � Our role is to manage the journey
Understanding parents and carers
Cultural background Family make-up
Education level
Disability
Understanding of disability
Previous contact with government agencies
Literacy level
Illness
Connection with the community
Age Educational experience
vs
Review Checklist for Complex Complaint Handling
q Policy Requirements q Procedural Fairness q No Conflict of Interest q Transparent Process q Listen q Timeliness q Professional Manner q Empathy q DocumentaIon q Impact on the student
A FINAL THOUGHT
“The fight for social & economic jus&ce
begins in the classroom.” Senator Barack Obama -‐ July 2008