Legal system barriers to the effectiveness of the Disability Discrimination Act 1992 (Cth) as a support for the inclusion of students with disability

Abstract

The Disability Discrimination Act 1992 (Cth) (DDA) appears to offer powerful remedies to students who have been refused enrolment, excluded after enrolment or denied educational opportunities or benefits because of their disability. The Act prohibits discrimination on the ground of disability in the protected area of education and obligates reasonable adjustment for disability. Over the course of its thirty-year history, court action taken under the DDA has disappointed more students than it has helped. Legislation like the DDA operates within a broader legal system and its remedial effect is affected by that system. Barriers to inclusion have risen from the legal system surrounding the DDA, a system which is complaints-based, adversarial and expensive. An analysis of those barriers is the focus of this article.

Introduction

The Disability Discrimination Act 1992 (Cth) (DDA) appears to offer powerful remedies to students who have been refused enrolment, excluded after enrolment or denied educational opportunities or benefits because of their disability. The Act prohibits discrimination on the ground of disability in the protected area of ‘education’ (see sections, 5, 6 and 22) and obligates reasonable adjustment for disability (see sections 5 and 6). In order to support compliance with the DDA, The Disability Standards for Education 2005 (Cth) (DSE) were introduced to provide additional guidance to schools as to the making of reasonable adjustment (DSE Explanatory Statement, 2005, p 1) and to impose a related obligation upon education institutions to consult with their students about reasonable adjustment (see DSE clause 3.5).

Despite implicit promises in the DDA of a non-discriminatory, inclusive education, however, there has been a mere handful of cases, typically involving students with physical or sensory impairment, where schools have been held to have breached the Act (see e.g. Hills Grammar School v Human Rights and Equal Opportunity Commission (2000) (mobility impairment), Murphy and Grahl v New South Wales [2000] (Murphy and Grahl [2000]) (muscular dystrophy), Clarke v Catholic Education Office [2003] and Hurst v State of Queensland (2004) (both hearing impairment)). Over the course of its thirty-year history, the DDA has disappointed more students than it has helped (see Australian Human Rights Commission, n.d.c). Although lawyers will often say it is only the ‘hard cases’ which go to court, those hard cases are particularly difficult to win for students whose disabilities manifest as ‘problem behaviour’, as courts have interpreted the DDA very narrowly to legitimise the exclusion of students whose inclusion could disrupt traditional, mainstream education settings and approaches to learning and teaching. How the terms of the DDA have been construed to create barriers to inclusion for students with disability is considered in a companion article to this article: ‘Barriers to Inclusion Embedded in the Disability Discrimination Act 1992’ (Dickson, 2022). Legislation like the DDA operates within a broader legal system and its remedial effect is affected by that system. A parallel set of barriers to inclusion has risen from the legal system surrounding the DDA, a system which is complaints-based, adversarial and expensive. An analysis of those barriers is the focus of this article.

A complaints-based system

The DDA is situated in a complaints-based system for seeking legal redress. A student who has experienced discrimination or, for students under the age of legal capacity, their parent or guardian, must make a complaint of breach of the legislation under the Australian Human Rights Commission Act 1986 (Cth) (section 46P). Unless the Commission terminates the complaint upon finding it is without substance, or vexatious (section 46PH), it is tasked with investigating the complaint and attempting to conciliate an outcome (section 46PF). If the complaint cannot be settled at conciliation, court proceedings may be commenced by the complainant (sections 46PH(1B) and 46PO).

The purpose of conciliation is plain – to attempt a satisfactory resolution of the dispute, thus avoiding potentially expensive and stressful court proceedings. Australian Human Rights Commission (AHRC) statistics suggest that most complaints of discrimination brought to the AHRC are resolved before a matter proceeds to court. The most recently available statistics (Australian Human Rights Commission, Complaints Statistics 2020-2021) show that 1006 complainants of disability discrimination were received that year (p. 13). Of the complaints, 128 (9%) related to education (p. 15). Although many complaints were discontinued or withdrawn, 438 were resolved by conciliation (p. 16). Some 207 complainants, however, were terminated after it was found ‘there was no reasonable prospect of conciliation’ (p. 16). Unfortunately, statistics are not available for education claims specifically.

The conciliation process is confidential, and detail of conciliated outcomes is not available except where ‘deidentified’ example outcomes are provided on the AHRC Conciliation Register (Australian Human Rights Commission, n.d.a). If we did know more about the conciliated cases, we could draw some inferences about the success or otherwise of the DDA in protecting students with disability outside the court room. We do not know, however, who wins, or even if anyone ‘wins’, just that the matters have been resolved. Although conciliated outcomes are achieved through a legally mandated dispute resolution process, they are not ‘law’. Conversely, because in a Common Law System like Australia decisions of courts may set ‘precedents’ to be followed by later courts, what courts decide about the law may impact upon the conciliation process. Prospects of success at trial may be projected according to what the law deems necessary to be proved. We do not know who ‘wins’ at conciliation, but it could be speculated that how the DDA has been interpreted has influenced how those matters have been resolved.

Despite the ‘reasonable adjustment’ provisions in the DDA and DSE which purport to impose positive obligations upon schools, any school’s compliance with the DDA and the DSE is only independently and objectively monitored if a student brings a complaint that the legislation has been breached. There are several problems with this complaints-based mechanism for enforcement of education rights and opportunities.

For education institutions and authorities, schools and school systems, other than a fear of being sued, of a complaint being made, there is no external incentive to comply. Although it may be underpinned by departmental policy, which in turn may be underpinned by legal obligations, ‘good will’ remains, perhaps, as the driver of proactive compliance with the law. Plainly, school staff, from principal to first year teacher, operate in a complex environment with serious responsibilities to all their students and sometimes limited resources to meet those responsibilities. The relevant law is complicated (see Dickson, 2022), and to a novice, may be challenging and confusing. It is hardly surprising that good will may sometimes be eroded by exhaustion and confusion, and that non-discrimination obligations may, consequently, not be met.

However, there are already remedies for exhaustion and confusion. Serial reports have recommended better resourcing and training in the law for teachers (e.g. Deloitte Access Economics (2017) pp. xiv-xvi; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2020), p. 235; Australian Government Department of Education and Skills and Employment (2021), p. v.). Although resourcing and training may be expensive, they are necessary if the rhetoric of inclusion is to be matched by action, and work remains to be done.

For students and their supporters, if good will does not deliver inclusion, there may be exhaustion and anxiety. There is evidence, too, that students and their supporters are not familiar with the protections available to them under the DDA and DSE, let alone of the opportunity to sue to seek that protection (Australian Government Department of Education and Skills and Employment (2021), p. v). First, students, or their parents, need to know that the complaints process exists before a complaint can be brought. The recent Inquiry into Suspension, Exclusion and Expulsion Processes in South Australian Government Schools found that 39.8% of parents and carers who did not progress their complaint against the SA Education Department to the AHRC, reported that they did not know that they could (Graham et al., 2020, p. 187). An alarming 32.9% of parents and carers reported that they did not know the AHRC existed (Graham et al., 2020, p. 187).

Even if students, parents and carers, are aware that they could sue to try for a better ‘deal’, taking legal action is stressful and expensive. Legal aid in Australia is usually available only to the most impoverished families. In some communities, there may be community organisations prepared to assist with the bringing of claims (see e.g. Hurst and Devlin v Education Queensland [2005] (Hurst and Devlin [2005]), discussed below). In some communities, assistance may not be available at all. The complaints-based system can multiply inequality, in that it is much easier for the children of well-resourced, well-informed, well-connected families to access justice.

Once again, better resources and training may improve the practical capacity to sue: raise awareness of online training in the DDA and DSE, increase funding of community legal centres. Calls for improved legal aid are not new and the cost of accessing justice is a problem for the entire legal system. Apart from any financial cost, however, delivery of these resources and training is not as uncomplicated for students and supporters as it is for ‘captive’ school staff who have institutional funds and professional development already built into their work schedules.

Education institutions are better equipped than students to take responsibility for compliance. Shifting much of the burden of compliance from the student to the institution could be achieved by establishing an external monitoring body, such as those which exist already for aged care facilities (The Aged Care Quality and Safety Commission) and childcare centres (The Australian Children’s Education and Care Quality Authority). Spot checks and regular audits would incentivise compliance by schools and potentially minimise the need for students to launch legal action. Such a system would certainly add an extra layer of complexity to the already complex school environment, but it would also compel the development of documented school systems which mitigate staff confusion about obligations and which, over time, promote consistently equitable treatment of students (see Dickson, 2019). Setting up an external compliance system would be expensive but may result in savings for both institutions and students, and even for government. Legal action is expensive for schools as well as students. In the appeal case Walker v State of Victoria [2012], Justice Gray, of the Full Federal Court, was critical of the way the case had been articulated by lawyers for the complainant but made the salient point that money spent by the respondent school on litigation ‘would have been better spent in the provision of services for disabled students’ (para. [114]). Government provides the expensive AHRC and court resources needed to resolve disputes. Any reform that promotes inclusion, and thereby reduces complaints and litigation, frees up funds to be allocated to strategies to promote inclusion.

An adversarial system

As the DDA is complaints-based, cases are run consistent with the adversarial nature of litigation in Australia. Although there is the opportunity for give and take when matters are resolved through conciliation or mediation as part of a pre-trial process, when a matter proceeds to trial, one party will win and the other will lose.

As noted above, if a complaint cannot be settled at conciliation, court proceedings may be commenced by the complainant. Although termination of the conciliation process triggers the opportunity to take a matter to court, only a small number of complainants can be expected to take that step. For those who do, even after litigation has commenced, some further matters may be confidentially settled, with the settlement ratified by the Court (see e.g. Kemp v The State of Victoria [2018] and Lewis v The State of Victoria [2019]). ‘Hard’ cases, however, do proceed to trial: hard because the question of law involved has not been resolved previously by a court; or, perhaps more problematically, hard because the parties are ‘hard-nosed’, entrenched in their views and unwilling to settle.

The litigation process may entrench already adversarial relationships between students, their families and their school. Court decisions often refer to long histories of disagreement and distance between students, their parents and their school. Following are three examples, selected from many, showing that intransigence may manifest on both sides of a dispute. In Murphy and Grahl [2000] Hearing Commissioner Carter, of the Human Rights and Equal Opportunity Commission, which at that time had a hearing function (see below), lamented that the facts revealed ‘a clear and unmistakable picture of a serious breakdown in the critical and important social relationship between those representing the educational authority in NSW at Bellingen Primary School on the one hand and the parents of a child with a serious disability who attended that public school on the other’ (section 2). Sian Murphy had degenerative spinal muscular dystrophy but was not impaired intellectually. Allegations of discrimination centred on the placement of an industrial bin in the ‘disabled’ parking space routinely used by Sian’s family and on the locking of the only entrance to the school grounds that was easily accessible by wheelchair. These gross incidents of discrimination were accepted by Commissioner Carter as evidence of ‘an unsympathetic, uncaring and negative, hostile environment or mindset which the school by its principal and some staff had created and demonstrated and as a result of which Sian was limited in her access to the wholesome benefits of a proper education and of a supportive educational environment’ (section 6.7). Relationships are particularly tenuous in the difficult context of students whose disabilities manifest as disruptive behaviour. Judge Antoni Lucev, in Burns v Director General of the Department of Education [2015] (Burns [2015]), found that ‘given the history of the matter’, the parents of the complainant child ‘were, and perhaps understandably so, extremely demanding in their exchanges with…[the respondent school]’ (para. [181]), but ultimately located the source of the relationship breakdown in the complainant’s mother’s concession under oath that the school ‘weren’t agreeing with everything…[she] wanted’ (para. [181]). In Connor v State of Queensland [2020] (Connor 2020) Justice Rangiah found the teachers ‘honest and reliable’ (para. [120]), while the complainant’s mother ‘too readily accepted the accounts provided to her by …[her son] and dismissed the observations of the teachers to the contrary as fabrications’ (para. [66]), and his father, ‘lacked perspective…[and] displayed no understanding of the difficult circumstances and conflicting duties that the teachers who dealt with…[his son] were faced with’ (para. [78]).

It is easy to say that all concerned should prioritise the interests of the student, should be moderate and temperate in negotiations about support, but when parents feel compelled to fight for more, and school staff may then be required to do more with limited time and resources, stressors are clear on both sides. Funding complexities exacerbate the tensions. Many, if not most parents, for example, do not understand the opaque funding arrangements for support of students with disability. Although a particular student may attract a dollar amount of funding to the system, that dollar amount may not always be allocated to them specifically. Many families of students supported by the National Disability Insurance Scheme would be familiar with consumer-directed care and would find that approach a stark contrast with school-decided support. Although detailed analysis of the complex state by state, and system by system, funding arrangements is beyond the scope of this article, some attempt to educate families about the starting point for funding, the Nationally Consistent Collection of Data on Students with Disability, may be found on the website of that body (NCCD, (n.d.)).

Consultation mandated under the DSE could perhaps have been expected to assist to build rather than to break down relationships between student, family and school but there are problems with that system too. The 2020 review of the DSE recommended amendments to include principles on consultation (Australian Government, Department of Education and Skills and Employment, 2021, Recommendation 2). Consultation is currently not defined, nor are expected outcomes set (Walker v State of Victoria [2011] (Walker [2011]), para. [284]). Although education department policies may require Independent Education Plans (IEPs) for students, for example, there is not a legislative model in place or legislative force behind the policy. Moreover, cases consistently say that, while consultation is mandated, agreement is not, and the school makes the ultimate decision about treatment of the student (Sievwright v State of Victoria [2012] (Sievwright [2012]) para. [164], Walker [2011], para. [284], Burns [2015], para. [179]).

An expensive system

As Justice Bernard Murphy, of the Federal Court, has said, extra-judicially, ‘Legal rights are just an illusion, and the principle of equality before the law is meaningless, if legal costs effectively prevent people from enforcing or protecting their rights’ (Murphy, 2017, p.1). As already noted, legal action is expensive. It is also risky. The barriers to inclusion embedded in the DDA itself, explored in the companion article to this article (Dickson, 2022), illustrate that taking legal action against a school alleging disability discrimination is particularly risky: the outcomes of cases already decided in the federal court system suggest a high probability that a complainant bringing action alleging a breach of the DDA may lose.

In the federal court system, though courts have the discretion to order otherwise (Federal Court Act 1976 (Cth) section 43), costs ordinarily ‘follow the event’: the loser pays both their own costs and the costs of the winner (see, for a recent example, Connor [2020], para. [355]). This is the approach even when the complainant is a child (e.g. Walker State of Victoria [2012] (Walker [2012]), para. [111]). Litigation costs can be substantial. Although some schools or school systems are wealthier than others, if a school loses, it is less likely to “go broke” and more likely to be able to afford to keep litigation going, for example by appealing to a higher court, driving up costs, to the point where the risk of continuing to fight may not be worth taking for students and their families.

A particularly controversial strategy which may be effective to stop a case ever reaching trial, is the seeking by the respondent education institution of a security for costs order. A court may order a complainant to pay into court an amount assessed to cover the costs which will potentially be awarded against them, should they lose. This measure is designed to protect a respondent education institution in situations where legal action is speculative, but it also has the effect of stymying legal action – if the complainant does not have the funds, the case cannot proceed. Applications for security for costs are not always successful (see e.g. Kiefel v State of Victoria [2014]. In the education discrimination case Kancheff v Charles Darwin University [2013, 10 October], however, Judge Lindsay of the Federal Court though ‘conscious of the fact that…making a security for costs order may well have the consequence of shutting down this litigation’ (para. [92]) nevertheless made the order. His decision was upheld on appeal (Kancheff v Charles Darwin University [2013, 25 November) and the case was discontinued.

Just as judges have implicated ‘adversarial’ parents in the breakdown of the student, family and school relationship, some judges have sought to ‘blame’ parents for their failed cases and, by implication, the financial consequences. Such an attitude raises the inference that some judges are of the view that parents should accept what is offered to their child and not litigate to receive more. In Hurst and Devlin [2005], for example, Justice Lander noted that the complainants were supported by a lobby group seeking to promote Auslan assistance for Deaf children in Australian schools, Deaf Children Australia (para. [421]), and was stern in his criticism of the use of legal proceedings to promote a ‘cause’:

In my opinion, proceedings under the HREOC Act [now the AHRC Act] are not the appropriate medium for advancing educational theory in the hope and expectation that educational institutions will have to respond to a decision of this Court (para. [431]).

Decisions about the education of children with disabilities, according to Justice Lander, are best made ‘by educators in the best interests of the children’ (para. [429]) and not by courts in the context of ‘adversarial’ proceedings (para. [425]). This view, it could be argued, puts significant faith in the expertise and impartiality of educators, at the expense of the wishes and knowledge of parents and students themselves. Indeed, it was only in the context of further ‘adversarial’ proceedings – an appeal to the Full Federal Court (Hurst v State of Queensland [2006]) – that it was determined that Education Queensland educators had not acted reasonably in their treatment of Tiahna Hurst. Sadly, Tiahna’s family made a difficult decision to relocate to Western Australia, where Auslan support was available, before the appeal was decided (Courier Mail, 2005).

Other judges have blamed lawyers for lost cases, and associated costs, accusing them of failing to advise their vulnerable and anxious clients appropriately as to the prospects of success of their case, and even of incompetent court pleadings. In Walker [2012] (on appeal), Justice Gray acknowledged that the order to pay costs in that case would ‘no doubt be ruinous’ for the Walker family, and said:

…the legal representatives engaged on behalf of a vulnerable person have a particular duty to ensure that complaints and grievances that are not capable of being brought within the Disability Discrimination Act are not pursued, and that those that are pursued are related clearly and directly to the provisions of the Disability Discrimination Act. (para. [114])

In Kiefel v State of Victoria [2013] (Kiefel [2013]), yet another failed case involving a student whose disability manifested as disruptive and, sometimes, aggressive behaviour, Justice Tracey cited Justice Gray’s commentary in Walker [2012] and said,

This, unfortunately, is yet another case in which well-meaning parents have wrongly been led to believe that redress is available under the DDA for what they perceived to be deficiencies in the manner in which educational services have been provided to their children by the State of Victoria (para. [6]).

In the recent decision, Harvey v Diocese of Sale Catholic Education Ltd (No 3) [2021] which concerned a successful application to strike out part of the complainant’s case, Justice O’Callaghan went a step further than criticism of lawyers. His Honour noted the ‘manifestly hopeless series of pleas…persevered with’ by the lawyers for the complainant and took the ‘exceptional’ step of ordering them to pay the costs of the application (para. [34]). This criticism is indicative, perhaps, of the complexity of this area of the law and suggests, too, that specialist lawyers may not always be available to offer advice and advocacy.

There is potential for federal court cost regimes to be reformed to improve access to justice (Murphy, 2017). Although one of the aims of the 2021 merger of the Federal Circuit Court and Family Court to form the Federal Circuit and Family Court of Australia is to promote the efficiency and affordability of the litigation process (Australian Government, n.d.) there does not appear to be any serious proposal in place to relax the ‘loser pays’ provisions of the Federal Court Act 1976 (Cth) in a way that might promote access to justice.

State and Territory governments have already taken steps to mitigate the chilling effect of costs orders on legitimately sought legal remedies. Discrimination claims brought under State and Territory legislation (see Dickson, 2022) are brought before tribunals such as the Victorian Civil and Administrative Tribunal (VCAT) and the Queensland Civil and Administrative Tribunal (QCAT). These tribunals are typically ‘çosts neutral’ – each party bears their own costs – in order to encourage complainants to seek a legal remedy. Moreover, the default position is also that legal representation is not required in these tribunals, and many complainants seek to represent themselves, keeping their own costs low. Many education discrimination complaints are brought in the state tribunals under state law (see Dickson, 2022) and it is an almost irresistible inference to be drawn that a key reason for choice of the state venue is the costs neutral/self-representation regime.

In an ideal world, consideration could be given to the creation of an Australia wide specialist tribunal which would taking decisions about the rights and wrongs of education disability discrimination claims away from the generalist federal courts altogether, avoiding the problems with the current system identified in this article. The Special Educational Needs and Disability Tribunal (SENDIST) is a United Kingdom tribunal which hears and decides discrimination complaints brought by parents of students with disability and where decisions are made by a panel comprising both lawyers and people with education expertise (see United Kingdom Department of Justice, n.d.). Although SENDIST has recently been criticised as requiring an ‘overhaul’ (Disability Rights UK, 2021), analysis of 2020–21 complaints statistics suggests that only 3.6% of claims (168 of 4285) were decided against the student with disability (Disability Rights UK, 2021). Both the number of complaints decided, and the outcome of those complaints, provide an astonishing contrast with the number and outcome of court proceedings brought under the DDA by or on behalf of students with disability.

Australia, however, is not an ‘ideal world’ for the creation of a SENDIST style tribunal. The predecessor body to the AHRC, the Human Rights and Equal Opportunities Commission, originally had the power to convene a tribunal to hear discrimination complaints across all protected areas, including education. In 2000, that tribunal’s functions were shifted to the federal courts because of concerns that they infringed rules in the Australian Constitution about the exercise of judicial power (see Australian Constitution, Chapter III), and related complexities about the enforceability of its decisions (See Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245).

The DDA itself, or, perhaps, the Australian Human Rights Commission Act 1986 (Cth), which currently sets out federal discrimination complaints procedures, could, theoretically, be amended to create an Australia wide version of SENDIST, but these constitutional law problems would make this process very difficult. The States and Territories, too, might object to what could be perceived as an administrative intrusion upon their scope of power. The power to legislate for education is left to the States and Territories under the Australian Constitution (see section 51), and currently the States, with Commonwealth funding support, run education systems. The States and Territories already operate accessible, low-cost tribunals, as explained above. State and Territory based SENDIST style tribunals could be established standalone or as a ‘subset’ of those tribunals, avoiding constitutional problems and ‘turf wars’. If established they might have the effect of attracting complaints under state anti-discrimination legislation that may otherwise have progressed under the DDA to the federal courts – ‘if you build it, they will come’?

Conclusion

It is a long and difficult road for a student with disability to take a discrimination case to hearing before a federal court: a complaint must be filed with the AHRC; conciliation with the school must be attempted, even though mandatory consultation under the DSE has likely already failed to deliver agreement; if conciliation fails, then court action must be commenced; hiring expensive lawyers to navigate the process is advisable even if objectively unaffordable; and the whole way, the school is a powerful, well-resourced adversary. When the court hearing of the discrimination allegations commences another long road lies ahead. Although the legislation relied on to guide the way, the DDA, appears to be helpful, there are traps at every turn (see Dickson, 2022). Moreover, the judge presiding over the hearing might have heard evidence from education ‘experts’ but will not be an education ‘expert’. Further, the presiding judge may, like Justice Lander in Hurst and Devlin [2005], believe that the courts ‘are not the appropriate medium for advancing educational theory in the hope and expectation that educational institutions will have to respond’ (para. [431]) or, like Justice Tracey in Kiefel [2013], discount complaints of discrimination as merely ‘perceived…deficiencies’ of the education system (para. [6]). If – when? – the complainant’s case is lost, will inclusion remain an illusion, and will bankruptcy follow? Making ordinary people fight, ‘David against Goliath’, for education rights doesn’t seem fair or just or right, especially when ‘David’ almost never wins.

After the Hurst and Devlin [2005] decision, the chair of Deaf Children Australia, Damian Lacey, called for Australian education authorities to be proactive rather than reactive in implementing systemic change (A Quick Peek Down Under, n.d.):

Our strong message, however, is that families should not need to go to such lengths [litigation] to secure access to quality education for their children. The DDA specifies that the needs of individual children must be accommodated within education settings, and we are looking to education authorities to take a lead in policy development and implementation, rather than reacting to the outcomes of these cases. We hope the future for Australian deaf children will hold a stronger and more empowered parent community and a responsible and responsive education system.

The DDA could be amended to remove problems with its utility as a legislative support for inclusive education (see Dickson, 2022) and action could be taken to improve accessibility and affordability of the federal courts. Changes could be made, but improvements to the education opportunities of students with disability achieved via these changes would be slow and ad hoc. Systemic change to support inclusion of all students with disability in mainstream schools is primarily the responsibility of executive government, not of courts or tribunals. State and territory education departments tasked with delivering education to Australian students, could take disputes away from lawyers and the law, out of courts, avoiding all of the stressors and stresses associated with court proceedings, by proactive reform of their education policies and practice.