Submission to the Select Committee on Autism
Services, Support and Life Outcomes
for Autistic People in Australia 17 July 2020
Contact:
Julie Phillips
Disability Advocate
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Introduction/Summary
I write as a Disability Advocate who has been working in the disability sector since
- Since 2000 I have been assisting people with disabilities through general advocacy, by assisting them to make complaints of discrimination, and supporting law firms who require assistance to work effectively in this area.
I have assisted parents in the making of approximately 60 complaints of disability discrimination against the Victorian Department of Education and Training. Most of these have settled.
My history includes working for disability service providers at a grassroots and senior management level, and involvement on numerous Boards in the disability sector, current today. The majority of my work is voluntary.
In the last 15 years, 80% of the clients who approach me for assistance, do so with concerns about the treatment of children and young people with disabilities in schools.
I would estimate that since 2006 I have been approached by several hundred parents and been provided with thousands of documents relating to their family members and their school experiences. Therefore the majority of this submission deals with the issue of education for autistic children and violence and abuse against them, in Victorian schools.
However, I have also assisted families in South Australia, New South Wales, Queensland and Tasmania.
Most of the students that I assist are autistic, with other comorbid disabilities. The treatment of them is no better or worse, whether they have Levels 1, 2 or 3 Autism.
The Committee will already be aware of the extent of violence, abuse and neglect against and of students with disabilities in schools, due to the work the Senate References Committee did on this topic in 2015, the relevant part of their report, and as a consequence the current Disability Royal Commission. Most of the students subjected to violence in schools are autistic.
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Do we need a National Autism Strategy?
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I submit we do not.
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Each Australian state has had all the plans, reviews, strategies and frameworks that it can take. This is particularly so given that the results of those in terms of outcomes for children with autism, have been negligible. Victoria, in terms of the treatment by the Department of Education and Training of students with disabilities, has had more enquiries and reports into its mistreatment and neglect than any other Australian State1.
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In Victoria, every few years we have a State Disability Plan, written by Government, ostensibly to set out a framework to benefit Victorians with disabilities. There is usually not one measurable outcome in that plan. There is no attempt, plan by plan, to determine whether a goal was reached. The plans consist of motherhood statements and anecdotes.
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Such documents, generally speaking, have been of little to no utility. For example the National Framework for Reducing and Eliminating the Use of Restrictive Practices, has achieved nothing. The inquiries and reviews have achieved nothing, despite their numerous recommendations.
1 Held Back-the Experiences of Students with Disabilities in Victorian Schools 2012
Victorian Equal Opportunity and Human Rights Commission
www.humanrightscommission.vic.gov.au/our-resources-and-publications/reports/item/184-held-back-the-experiences-of students-with-disabilities-in-victorian-schools-sep-2012
Programs for Students with Special Learning Needs Victorian Auditor General 2012
https://www.audit.vic.gov.au/report/programs-students-special-learning-needs
Review of Program for Students with Disabilities 2016 www.education.vic.gov.au/Documents/about/department/PSD-Review-Report.pdf
Report on Students with Disabilities in Victorian Schools Analysis Paper 2017
Victorian Equal Opportunity and Human Rights Commission
Parliamentary Report on Services for People with Autism Spectrum Disorder 2017 https://www.parliament.vic.gov.au/fcdc/inquiries/article/2588
Victorian Ombudsman’s Investigation into Victorian Government School Expulsion 2017
Victorian Equal Opportunity and Human Rights Commission Submission to the Review of the Education and Training Reform Regulations 2017 https://www.humanrightscommission.vic.gov.au/policy-submissions/item/1546-submission-to-the-education-and-training-reform-regulations-2017
Improving Educational Outcomes for Children with Disability in Victoria, Castan Centre for Human Rights Law 2018 https://www.monash.edu/ data/assets/file/0016/1412170/Castan-Centre-Improving-Educational-Outcomes-for-Students-with Disability.pdf?utm source=newsletter&utm medium=email&utm campaign=read our landmark report into the education of children with disability&utm term=2018-06-28
School Compliance with Victoria’s Child Safety Standards, Victorian Auditor General’s Office 2019
https://www.audit.vic.gov.au/sites/default/files/2019-06/200619-Child-Safe-Standards 0.pdf
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The Victorian Autism inquiry, only a few years ago, has resulted in no improvements for autistic children, simply a plan for another plan, no doubt consisting of more motherhood statements, no measurable outcomes, and not requiring government to do anything measurable (if previous plans are anything to go by). Despite the seriousness of the findings of the Senate Committees review of services for autistic people, including education, the latest website update is that we still don’t have a plan, despite the fact that the inquiry was held four years ago.
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The sector is weary of contributing to reviews and inquiries that result in documents. Documents do not mandate to change.
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If the Committee genuinely supports a change in circumstance for autistic people, then instead of a National Autism Strategy, it ought with respect to consider what mandated provisions and changes to laws should be put in place to improve their circumstances and protect them from harm.
The State of Play - Autistic children in the Victorian education sector
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The following are recent case studies.
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Case 1 Seven-year-old child. Parent required to take on the duties of volunteer integration aide for the first six months of his enrolment. Without informed consent, subjected to a trial where instead of receiving intensive support from a credentialled behavioural expert, a ‘train the trainer’ model was imposed upon him. The trial method failed. Child suspended at six years old and has not been to school for over one year.
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Case 2 Eight-year-old child. Parent required to take on the duties of a volunteer integration aide. No expert behavioural assistance. Child has now left the Victorian government system after four failed enrolments. The first enrolment he was suspended on his third day.
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Case 3 Primary school siblings with autism have not attended school for over two years, after one of them was assaulted by a teacher. Both have developed critical academic delays putting them years behind their peers.
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Case 4 No credentialled behavioural expert engaged to provide intensive assistance despite thousands of instances of injury and self injury, some resulting in hospitalisation. Child has attended three schools, and has now withdrawn from the Victorian government system. The child is of primary school age.
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Case 5 Primary school child complains of being tied up at his segregated school. So traumatised he cannot return, and he has been withdrawn from the Victorian government system.
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If you multiply the cases above tenfold, that may accurately represent cases in the last three years.
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The evidence suggests that indeed the Victorian Department of Education (“the Department”) and Training is intent on forcing autistic children out of mainstream schools, either to segregated settings, or to home-schooling.
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In 2009, the Department altered the guidelines of its Autism Category in its disability funding program, to cut out many children with Autism 1 by ruling out a pragmatic language disorder as being sufficient on its own as part of an Autism diagnosis, for funding 2. The intention was to reduce the expenditure on autistic students.
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The Department refuses to keep data on almost any subject to do with children with disabilities, or release it. It has no data as to how many children enrolled in Distance Education (now known as Virtual Schools Victoria) are autistic. It has no data, or will not release data, on how many children are being subject to violent practices in schools, and what disabilities they have, when anecdotally it is clear that the majority are autistic. This is despite the Department committing to provide that data in 2017 in both its own publications 3 and through the media4. Recent direct requests for that data have been refused.
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Meanwhile, the violence and abuse against autistic students continues. In June 2020, the Department announced an inquiry into three special schools5. This was not an investigation that was voluntarily taken by the Department. It
2 Autism Spectrum Program for Students with Disabilities professional guidelines updated 2017 3 The Principles for Reduction and Elimination of Restraint and Seclusion in Victorian Government Schools p22 4 https://www.theage.com.au/national/victoria/students-grabbed-wrestled-to-the-floor-and-strapped-to-chairs-three-or-more-times-a-day-20170608-gwn13z.html. 5 https://www.theage.com.au/national/victoria/violence-abuse-neglect-three-melbourne-special-schools-in-probe-20200620-p554ht.html
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was due to the author of this submission repeatedly notifying the Minister for Education, Mr James Merlino of human rights abuses and copying in other relevant statutory authorities. The Department itself was already well aware of the abuse, and not only had taken no action, but had been and is defending its actions.
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Despite the fact that the Department has an integrity system whereby investigations into government departments are undertaken by independent bodies, Minister Merlino has sanctioned the Department of Education and Training overseeing the investigation. The law firm engaged by the Department, , has not been made public, as it is one of the Department’s law firms currently involved in fighting disability discrimination claims from students with disabilities. In other words, a law firm that is currently defending the Department in relation to the mistreatment of students with disabilities, is also undertaking at the request of the Department, with the with an investigation into the mistreatment of students with disabilities.
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The informants that I assisted in approaching the Minister with some of their stories in order to obtain the investigation, including current and ex staff as well as parents, are not taking part in the investigation for obvious reasons.
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The reason the above is relevant to the Committee’s enquiries as to whether we should have a National Autism Strategy, is to indicate that we have gone a significant way past simply the need for a strategy.
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We have organised violence abuse and neglect of autistic students in Victorian schools, such violence abuse and neglect given the imprimatur of the Department and the Minister himself.
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Therefore, how does a strategy, however well intentioned, protect Victorian autistic students? Given the long standing and highly protected mistreatment of this group, a strategy, with all due respect, is of no utility.
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If we sadly conclude the reality of autistic students in Victoria, being: a. frequently suspended due to their disability; b. frequently expelled due to their disability (even from segregated schools);
c. frequently subjected to violence, abuse, restraint and seclusion; d. frequently denied the opportunity for an education in segregated schools, where, in schools such as Southern Autistic School, the curriculum consists of community activities, regardless of IQ;
e. frequently forced out of the government schooling system completely, many so traumatised they cannot return.
then how do we feel the above is appropriately addressed?
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- In Victoria, despite the many reviews and enquiries mentioned above, the above list of mistreatment continues unabated. This means, that what is needed to protect these children and allow them to receive an education, be treated like learners, and be safe from violence, is mandated and effective protections. Currently, autistic children have no recourse to mandated and effective protections.
Law reform
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In relation to the Disability Discrimination Act 2010, and the Disability Standards for Education 2005, I commend the submission by the Disability Discrimination Legal Service to you.
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There are no laws that protect autistic children in schools from staff violence.
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In relation to the Crimes Act I refer you to the Victorian Equal Opportunity and Human Rights Commission report on Victoria Police and their handling of people with disabilities who are victims of crime6
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Recently the writer assisted a parent of an autistic child who attempted to charge the principal of his school with assault7. The parent on behalf of the child made a complaint to the Australian Human Rights Commission and subsequently to the Federal Court due to the fact that Victoria Police refused to speak to the only independent witness of the assault (naturally clearing the principal automatically). Victoria Police successfully struck out the claim in the Federal Court, claiming that it did not provide services. In other words, Victoria Police defended its right not to properly investigate crimes against an autistic child, on the basis that it technically was not required to adhere to the Disability Discrimination Act.
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Autistic children need legal protection. They do not have it. If Commonwealth relationship with states
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The Federal Government provides significant amounts of funding to the states in order that amongst other things, they can run their schools. There are no key performance criteria around restraint, seclusion, violence, abuse, neglect, or academic outcomes for autistic students (or students with other disabilities).
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As a result, state Departments of Education do as they wish, beholden to no one. It is submitted that no commercial organisation would run as unprofessionally as the Department does in Victoria-no policies or procedures that need to be read or followed, due to all schools being “autonomous”. Even fast food outlets have greater quality control than the Victorian Department of Education - such a problem having been pointed out by the Victorian Auditor General’s Office on numerous occasions.
6 Beyond Doubt: the Experiences of People with Disabilities Reporting Crime 7 Bickle v State of Victoria (Victoria police) [2020] FCA 168
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- If the Commonwealth is genuinely concerned about autistic children, than it has opportunities to ensure their safety, and their right to an education, by tying outcomes to its funding.
Summary
- The circumstances for autistic students in Victorian schools could not be more dire. These children and their families are suffering significantly with the imprimatur of the State of Victoria. Many of them are traumatised beyond recovery. As we speak, yet another of the Department’s “independent” investigations is rolling ahead, despite the fact that the complainants will only speak to an independent body. Numerous disability organisations have written to the Minister to ask for the investigation to cease and be passed over to a statutory authority. To date the Minister refuses.
Recommendations
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The Disability Discrimination Act and the Disability Standards for Education need urgent law reform.
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Evidence acts in each state need to be reviewed in order that State police cannot so readily dismiss any complaint by a child with a disability.
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State police should be required to keep and release data publicly as to how many complaints they do not process on behalf of people with disabilities.
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The Commonwealth should, in consultation with representative bodies, (Disabled Persons Organisations) and disability advocates develop key performance criteria for all state departments of education to follow, that require data on violence abuse and neglect, and require reporting on academic outcomes. Their funding should be linked with the meeting of these key performance indicators.
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The Commonwealth needs to uphold its obligations under the Convention on the Rights of Persons with Disability and develop a plan towards inclusive education, with the shutting down of segregated schools which is where most of the abuse of autistic students occurs. Australia has signed the optional protocol, and is bound by General Comment 4 on Inclusive Education.
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Until evidence-based behavioural approaches are mandated and funded in schools, then all schools should have security cameras, such footage to be kept for six months. This should particularly apply to segregated schools.
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