Submission to the Inquiry into support for autistic children and young people in schools
Education and Health Standing Committee Via email only to: laehsc@parliament.wa.gov.au
An oversight role for the Policy Framework for Substantive Equality and anticipated changes to the Equal Opportunity Act 1984 are the two main drivers for this submission from the Equal Opportunity Commission to the Health and Education Standing Committee’s Inquiry into support for autistic children and young people in schools.
Background
The Equal Opportunity Commission (the EO Commission) is responsible for the administration of the Equal Opportunity Act 1984 (WA) (the EO Act). The main objects of the EO Act are to promote equality of opportunity in Western Australia (WA) and to provide remedies in respect of unlawful discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, age, or publication of details on the Fines Enforcement Registrar’s website, or involving sexual or racial harassment or, and in certain cases, on gender history grounds.
There are areas of public life covered by the EO Act depending on the ground of discrimination. Education is one of the areas covered by the EO Act. Each year the EO Commission receives complaints of alleged discrimination in the area of education, although the EO Act is not extensively used as the avenue for such complaints due to its current limitations, especially in relation to impairment complaints.
Policy Framework for Substantive Equality
The Policy Framework for Substantive Equality (the Framework), which is complementary to the EO Act, was released in 2005 and while initially focussed on institutional racism, in 2013 it was extended to cover all grounds of the EO Act including impairment. Implementing the Framework remains, at least in theory, mandatory for major State Government agencies.
The Framework provides a clear outline for organisations to form strategic partnerships with anti-discrimination organisations and with communities that often face discrimination. Central among the principles of the Framework is increasing awareness of institutional discrimination by requiring agencies to review policies and programs to identify barriers to service and make recommendations to remove such barriers. It stresses the importance of empowering communities that face discrimination, developing long term strategies to target specific behaviours, and encouraging positive initiatives in the prevention and elimination of discrimination.
Review of the Equal Opportunity Act 1984 (WA)
In 2021 the Law Reform Commission of Western Australia (LRCWA) commenced an extensive review of the EO Act (the Review) with the methodology comprising preliminary targeted consultation with stakeholders, publishing of a discussion paper,
holding public consultation sessions and considering views expressed in over 900 submissions received.
The EO Commission welcomed the Review and made a submission supportive of the EO Act including the notion of substantive equality, a broader definition of impairment including reasonable adjustments, and expanding the area of education to cover curriculum authorities.
In August 2022 the Attorney General tabled in State Parliament the LRCWA’s report Review of Equal Opportunity Act 1984 (WA), Project 111 Final Report (the Report). The Report contains 163 recommendations, including a broader definition for disability and several recommendations relating to reasonable adjustments and positive duties. Given their importance to the context of this submission and for ease of reference, four recommendations plus an extract from section 4.4.1 are quoted at this point.
Recommendation 22
Disability should be defined to mean:
- total or partial loss of a person’s bodily or mental functions;
- total or partial loss of a part of the body;
- the presence in the body of organisms causing disease or illness;
- the presence in the body of organisms capable of causing disease or illness;
- the malfunction, malformation or disfigurement of a part of the person’s body;
- a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
- a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
It should include a disability that may exist in the future (including because of a genetic predisposition to that disability).
It should also include behaviour that is a symptom or manifestation of a disability.1
4.4.1 Accommodating impairments
Certain sections of the act …
Many stakeholders submitted that the Act does not offer sufficient protection to persons with an impairment. These submissions were primarily made on the basis that, as currently drafted, the Act does not proactively promote or otherwise require that reasonable adjustments be made but instead responds to incidents of discrimination once they have already occurred. There was broad support for instead introducing a responsibility to make reasonable adjustments for individuals with an impairment into the Act.2
Recommendation 66
A legislative responsibility to make reasonable adjustments should be enacted. At a minimum it should prohibit a failure to accommodate a special need that another person has because of an impairment (or disability if the Commission’s recommendation is adopted), pregnancy, breastfeeding, family responsibilities or carer obligations.
1 LRCWA Review of the Equal Opportunity Act 1984 (WA), Project 111 Final Report, May 2022, p.74
2 Ibid, p. 148
Consideration should be given to creating a responsibility that extends to all protected attributes and all areas of life.3
Recommendation 67
The responsibility to make reasonable adjustments should be a positive, stand-alone responsibility.4
Recommendation 68
The responsibility to make reasonable adjustments should be framed as a responsibility to make reasonable adjustments unless it would impose unjustifiable hardship on the holder of the responsibility.
The Act should provide that in determining whether a hardship would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
- the nature of the adjustment sought;
- the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned if the adjustment were or were not made;
- the effect of the disability (or other protected attribute) of any person concerned;
- the financial circumstances of the alleged discriminator, the estimated amount of expenditure required to be made by them and the financial impact on them if the adjustment was made;
- the availability of financial and other assistance to the alleged discriminator; and
- any relevant equal opportunity management plan made under Part IX of the Act.5
The EO Commission generally supports the adoption of the above recommendations as they aim, and have potential to deliver, improved outcomes for students with conditions such as autism. If enacted as part of an amended EO Act, the recommendations will also have a significant impact on the responsibilities and liabilities of education institutions.
For example, Recommendation 22 could be significant in determining whether educational institutions have discriminated against a student when issuing penalties such as suspension or exclusion based on behaviour and the behaviour is due to their autism.
It is expected that enactment of the recommendations would also increase the number of allegations of unlawful discrimination in the area of education which the EO Commission accepts and handles as complaints. Currently when the EO Commission receives a complaint that an education authority is not providing reasonable adjustments for a student with a disability (including autism), it suggests contacting a discrimination law specialist (such as Sussex Street Community Law Service Inc) or the Australian Human Rights Commission to ascertain whether the Disability Discrimination Act 1992 (Cwth) may be a more appropriate jurisdiction because it allows for the provision of reasonable adjustments.
3 Ibid p. 151
4 Ibid p.152
5 Ibid p.156
Conclusion
The Equal Opportunity Commission continues to advocate for maintaining and strengthening through legislation the Policy Framework for Substantive Equality as an essential tool for organisations to achieve equality of outcomes in the services they provide to the community. For schools to foster the wellbeing of all children and young people in schools, including those with autism, and help them reach their full potential, achieving equality of outcomes is of paramount importance.
Yours sincerely
redacted
Dr John Byrne Commissioner for Equal Opportunity 12 July 2023