Interpretation of 'reasonable' adjustments under the Disability Discrimination Act | External submission

Submission

to the Attorney-General’s Department Review of the

Disability Discrimination Act

Carol Barnes 7 October 202

This submission relates to Education only

Definition of ‘disability’

The current definition of ‘disability’ in the DDA and DSE is appropriate as it is. Above all, don’t change the word ‘disability’ to some fluffy euphemism such as ‘neurodivergence’ or ‘disadvantage’. Because it is well known that I am currently writing my PhD in Law on the DDA in education, I already have enough parents contacting me to see if they can use the DDA to complain to the AHRC on the grounds that their child is BLOND or FAT. All the disabilities listed in the current definition of ‘disability’ in the DDA and DSE can be professionally measured. Providing resources for disability to be professionally assessed and measured within education providers (for free) would be a good idea, though not within the province of the current Review. Arguing that we must eschew all ‘deficit’ language is a furphy: poor vision is technically a ‘deficit’ and perhaps used to be considered shameful. Now there is an optometrist on every street corner and those with poor vision are not ashamed to have that disability. Time now to rid the word ‘disability’ of its stigma. If a piece of legislation were to eschew the word ‘disability’, legislators would be contributing to the enhancement of the stigma by resorting to a vapid euphemism in its place.

Proposed removal of the word ‘reasonable’ from the Disability

Discrimination Act (DDA)

DRC Rec 4.25: “The Disability Discrimination Act 1992 (Cth) should be amended by replacing all references to ‘reasonable adjustments’ with ‘adjustments’.”

This recommendation is unnecessary and frankly quite ridiculous, since courts will still infer a general law ‘reasonableness’ requirement or component, as in other areas of law – eg, tort, contract, criminal. Even if the DRC recommendation regarding the deletion of the word ‘reasonable’ were to be accepted, would not the notion of ‘reasonableness’ still be imported by judicial decision makers, the same way that the notion of ‘reasonableness’ underpins

other areas of law (reasonable period of notice of intention to rescind in contract; reasonable foreseeability in negligence; reasonable doubt in criminal)? If ‘reasonable’ were to be removed, some will argue that ALL proposed adjustments would then have to be implemented without question, even if they are not supported by professional evidence, and no matter how patently ridiculous or far-fetched they are [as long as they don’t qualify for the Unjustifiable Hardship exception]. One example is the little boy with dyscalculia who claimed that a ‘reasonable’ adjustment for him would be to have his friend write his Math exam for him because “My friend is better at Math than me.” Would that not be refused on the grounds of unreasonableness, even if the word ‘reasonable’ is not in the DDA?

‘Reasonableness’ is always a matter for negotiation between the parties – for example, 2 minutes’ extra time for 3-hour exam for a child with a slow reading speed would probably always be considered unreasonable (ie, not enough time), whereas triple time would likewise be seen as unreasonable (ie, too much time). The correct interpretation of ‘reasonable’ would lie somewhere between the two extremes.

Consider two children who have the same formal diagnosis of dyslexia, but one has a professionally-measured reading speed of ‘half as fast as a child without dyslexia’ and the other has a professionally-measured reading speed of ‘a quarter as fast as a child without dyslexia’. Should they both receive the same amount of additional exam time? What would be reasonable? And we would need to factor in what proportion of the exam required actual reading, as opposed to thinking, planning and writing (unless there was evidence of slow rates of performing those tasks too).

Consider two children with the same disabilities and the same levels of impairment and the same professionally recommended classroom adjustments and remediation which is expected to be quite time-consuming for the classroom teacher. If one child is in a classroom of eight, then seven other children will have to also have their learning needs met while the adjustment or remediation is taking place. On the other hand, if the other child is in a classroom of 30, then 29 other children will also have to have their learning needs met in the same amount of time. Is the same recommended adjustment or remediation ‘reasonable’ for both children, in light of the number of others who might be negatively affected by them?

What is ‘reasonable’ is best determined with the help of well-credentialled professional evidence, focussing on what would be a ‘reasonable’ adjustment for: THIS child with: THIS form of disability, and THIS level of impairment, in THESE circumstances, for a task of THIS kind and THIS length, and in THIS context where:

no one else would be adversely affected or disadvantaged by the proposed adjustment, and

the proposed adjustment would not affect the integrity of the task for which it is to be used, and there is no other different adjustment which would be equally appropriate for the child in these circumstances, and the child (and/or parent) has been consulted and has agreed to the adjustment, and is comfortable with the amount of time available for the child to learn to use it, and the proposed adjustment would not: confer an unfair advantage on the child applying for it, or result in the breach of any other statute (eg, OHS legislation).

Improve guidance on the provision of reasonable adjustments to students with disability, and clarify meaning of ‘reasonable’ DRC Rec 7.3 (a):

“a) State and territory educational authorities should develop and make available in accessible form:

guidelines to enable schools, principals and teachers to comply with their statutory obligations to provide adjustments for children and young people with disability
guidelines addressing the relationship between the statutory duty to provide adjustments and duties of care imposed on educational authorities, schools, principals, teachers and staff, such as those imposed by occupational health and safety legislation and the general law
guidelines addressing the processes for identifying, planning, implementing and evaluating adjustments required for individual students with disability
guidelines explaining the nature and content of the obligation under the Disability Standards for Education 2005 (Cth) (Education Standards) to consult with students with disability and their parents, carers and supporters
information explaining the sources of funding for providing supports to students with disability and the procedures governing the allocation of funds for that purpose
requirements for schools and principals to keep records and to report on the provision of adjustments for individual students with disability”

Such guidelines already exist, both federally (eg DOE, NCCD) and at the State level (eg, NSW inclusive education practice hub). They purport to ‘explain’ the DSE, and are invariably so ultra-simplified as to be misleading – the result of selectively tweezering out one section of a long statute and concluding ‘this is always the RULE’. Trouble is, virtually no one reads the existing guidelines, and they are not enforceable or binding. Teachers have other priorities, such as searching for a reason not to quit their burdensome jobs.

And in any event, there exists no kind of master list of what adjustment is ‘reasonable’ for what disability in all circumstances. There is no master decree specifying ‘ADHD gets XXX and dyslexia gets YYY’. Nor should there be.

See also:

Human Rights Commission Report Free and Equal - Recs 1 and 3
NSW Anti-Discrimination Act Review Report - Rec 25 (page 142) Meaning and scope of ‘unjustifiable hardship’ defence

DRC Recs 4.32 and 4.24:

“Section 11 of the Disability Discrimination Act 1992 (Cth) should be amended by inserting the new subsections 11(1)(aa), 11(1)(ab) and 11(1A) as follows:

11 Unjustifiable hardship (1) For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

(a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned; (aa) the nature and extent of the first person’s consultations with any person with disability concerned; (ab) the first person’s consideration of all available and appropriate alternative measures or actions; (b) the effect of the disability of any person concerned; (c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person; (d) the availability of financial and other assistance to the first person; (e) any relevant action plans given to the Commission under section 64.

Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.

(1A) The person relying on unjustifiable hardship must: (a) create and retain all documents recording the person’s consideration (if any) of each of the factors in subsection (1); and (b) provide reasons to the person concerned, if so requested, for contending that unjustifiable hardship existed at the time of the alleged unlawful discrimination.

(2) For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

The above list of factors and tests is very similar to what is already in the DSE. Education providers already have to keep records and be prepared to give reasons in the event that a case proceeds to HRC.

Beneficial interpretation

DRC Rec 4.34:

“The Disability Discrimination Act 1992 (Cth) should be amended by inserting a new subsection 4(3):

(3) This Act must be interpreted in a way that is beneficial to a person or persons with disability, to the extent it is possible to do so consistently with—

(a) the objects of this Act

(b) the Convention

(d) the Disabilities Convention

(e) the International Covenant on Economic, Social and Cultural Rights”

This is a good recommendation. Its adoption would revive and codify the old presumption of beneficial interpretation of statutes in favour of the weaker or more vulnerable party to a dispute, especially if the stronger party is a government department or similar.

Parent consultation

DRC Rec 7.3 (a) bullet 4, and Rec 7.6 (a):

“a) State and territory educational authorities should develop and make available in accessible form: …

guidelines explaining the nature and content of the obligation under the Disability Standards for Education 2005 (Cth) (Education Standards) to consult with students with disability and their parents, carers and supporters “

…

a) State and territory educational authorities should update their policies and guidance for schools to support the implementation and continuous improvement of requirements for student and parental communication and relationships. These should:

· include clear, accessible material for students with disability and their families on their rights and school obligations

· target decision-making for individual students and at the whole-of-school-level

· cover applications to attend a local school and address how students and parents should expect to be involved in decision making, adjustments and complaints handling and informal resolution processes

· indicate types of decisions that require formal parental agreement, such as approaches to behaviour management

· be co-designed with people with disability and their families.

…

c) School principals should work with their governing bodies and school communities to establish local school policies, procedures and practices to enable students with disability and their parents, carers and advocates to fully and effectively take part in the school community and decisions that affect a student’s educational experience.

These are good recommendations, as long as education providers have sufficient staff to do the consulting and liaising (and inevitable protracted battles…) with parents, since regular mainstream classroom teachers do not have time or training to assume such an onerous task.

See also:

NSW Parliamentary Review Report – Rec 2 (explained page 94)
NSW Auditor General Report – Recs 4 and 5 (d) Guidelines – ILPs (aka IEPs)

DRC Rec 7.3 (a) bullet 7:

“· guidelines for developing individual learning plans for students with disability, including requirements for keeping records on the learning program for each student and for making the records available to parents, carers and supporters”

There is nothing to be gained by this, and US experience has shown that inserting a formal IEP requirement into legislation just encourages lengthy and bitter litigation focussed on the minutiae of (eg) whether a given document meets formal requirements and has been executed and witnessed properly. Assuming agreement of both parties can be shown in one form or another, a piece of paper called ‘Disability adjustments for Timmy’ will be just as enforceable as something called an ‘IEP’. As will an exchange of emails, as long as agreement/meeting of the minds can be established. Teachers don’t have time to do anything more formal, and experience shows that IEPs (however called) tend not to be adhered to in any event.

Complaint management

DRC Rec 7.10:

“a) State and territory governments should create or expand existing complaint management offices that operate within educational authorities at arm’s length from schools to help resolve complaints about schools, specifically complaints concerning the treatment of students with disability. These offices should be empowered to:

· provide students and parents with information about their rights and options when managing complaints

· request information and conduct conciliations, connecting families with advocacy support and specialist disability expertise where needed

· initiate a formal investigation if a complaint is serious or otherwise indicates systemic issues

· support and assist the complainant in referring matters to the appropriate regulator or independent oversight body if a complaint cannot be effectively resolved

· work with schools to analyse complaints and regularly report on how education systems might improve to reduce future complaints

· work with school principals to ensure school policies are student-centric, accessible, efficient, safe, trauma-informed and culturally appropriate.

b) The Australian Government should include new duties and measures relating to complaint management procedures in the Disability Standards for Education 2005 (Cth) (Education Standards) to help achieve national quality and consistency, and ensure complaint handling processes are student-centric, accessible, efficient, safe, trauma-informed and culturally appropriate.

c) State and territory school registration authorities should embed new complaint handling duties and measures for compliance, as defined in the Education Standards, in registration requirements for all schools in their jurisdiction as a basis to monitor and enforce compliance.”

This is a good recommendation, as long as education providers have sufficient staff to do the consulting and liaising (and inevitable protracted battles…) with parents, since regular mainstream classroom teachers do not have time or training to assume such an onerous and unpleasant task.

Reintroduce an intermediate adjudicative process Free and Equal Report Recs 22 and 23 (both page 84): 22

“The Commission recommends that the Government give serious consideration to reintroducing an intermediate adjudicative process into the federal discrimination system to bridge the gap between voluntary conciliation at the Commission and litigation in the federal courts.”

23 “The Commission suggests that this could take the form of:

a tribunal-like body
the restoration of hearing and determination functions of the Commission
the creation of an arbitral process.” Depending on rulings re costs, these two recommendations could usefully discourage some respondents from simply refusing to engage (eg, to answer HRC correspondence all) or refusing to show up at HRC Conciliation (which is their right). When they do this, they are betting that the complainant won’t have financial means to proceed to a Federal Court hearing, as applicants need to now if an education provider refuses to engage.

Years ago, when such an intermediate adjudicative process was in place, but was found to be unconstitutional. Anecdotally parents of children with disability felt more confident about taking the first step (ie, filing a HRC complaint), knowing that the next step was not going to be an expensive court hearing.

Year 12 final exams disability adjustments programs and processes

NSW Parliamentary Inquiry Report Rec 21 (explained page 139), and Rec 23 (explained page 141): 21

“That  the NSW Government  consider a  streamlined  process,  including a  line  of

communication between the relevant agencies, for granting disability provisions for the Higher School Certificate. The process should incorporate recognition of pre-existing conditions and adjustments already provided in the classroom.” 23

“That the NSW Government investigate and review options for an independent oversight function or body to support, advocate and investigate on behalf of children and young people with disability and their families. The independent body could include the following features: …

The ability to review and adjudicate on decisions by schools about adjustments, and decisions by NESA about Disability Provisions”

While these are State recommendations, it would be good if a way could be found to enshrine in the DDA the prima facie approval of longstanding and professionally recommended disability adjustments for Year 12 final exams in each jurisdiction. Statutory authorities in many jurisdictions tend to withdraw these exam adjustments half way through Year 12, on the grounds that they constitute ‘cheating’, even if the child with disability has been using and relying on the adjustment since Year 2, and parents have inches and inches of professional evidence recommending it. This is so especially if the applicant child with disability:

is intellectually gifted;
has been accelerated at school;
is not failing’;
is expected to ‘pass’ their exams in any event without the exam adjustment; or
has parents who are perceived to be excessively ‘pushy’ or overly ambitious.

There should be a rebuttable presumption that medical and allied health professionals’ reports and recommendations are accurate and genuine, as in the US.