The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission) recently delivered its Report entitled 'Barriers experienced by students with disability in accessing and obtaining a safe, quality and inclusive school education and consequent life course impacts' (the Report). The Report was published after hearing evidence in relation to government schools in New South Wales and Queensland. The Report identified nine 'Areas for Further Inquiry'. Areas for Further Inquiry are areas that the Royal Commission will investigate further when developing its recommendations for its Final Report which is scheduled to be delivered in September 2023.
March E-Mail Alert
In our E-Mail Alert published in March this year, we discussed the Disability Standards for Education 2005 (Cth) (the DSE) and an education provider's requirements and obligations under the DSE to:
- enable students with a disability to access and participate in education 'on the same basis' as a student without a disability. 'On the same basis' means that a student with a disability must have opportunities and choices which are comparable with those offered to students without disability; and
- consult, make reasonable adjustments and to eliminate harassment and victimisation.
The above matters were also traversed in far more detail in our recent Enrolment's Office Workshops including a discussion on the unfortunate practice of 'gatekeeping'. The Report defines 'gatekeeping' as 'the denial of access to, or informal discouragement of children and young people with disability from attending, the school or education facility of their or their families' choice'. A good example of 'gatekeeping' practices is, for example, a student who has an intellectual disability being advised by staff at School A that the student would be better suited to School B because School A (allegedly) cannot cater for the student's special needs. In many situations, 'gatekeeping practices' are unlawful because the school would not have adequately discharged its obligation to consult sufficiently to determine what 'reasonable adjustments' the student requires and whether the school can meet those needs.
Report's Relevant Findings
The Report is very comprehensive and includes the unfortunate experiences of a number of students with disabilities and their families. Relevant to this E-Mail alert, three paragraphs of the Report touched on a student with a disability's access to enrolment and the obligation to identify and implement reasonable adjustments. Specifically, in relation to:
- access to enrolment, paragraphs 213 and 214 of the Report stated:
"The two most recent DSE reviews recorded the views of stakeholders that there is a 'lack of transparency in decision-making over the enrolment of students' and that there are few consequences for education providers who fail to comply with the DSE, including in respect of enrolment".
"Evidence at Public hearing 7 was consistent with these views. Witnesses described being denied enrolment because of their disability. In some cases this took the form of outright refusal to enrol; in other cases, parents were encouraged to seek other options".
- reasonable adjustments, paragraph 227 stated:
"We heard evidence at Public hearing 7 of repeated failures to identify and implement appropriate reasonable adjustments. In some cases, reasonable adjustments were not provided at all. In others, there appeared to be failures to take into account the views of students and their parents or to properly plan individualised reasonable adjustments".
Areas for Further Inquiry
Of the nine 'Areas for Further Inquiry (all of which are very important), four are relevant to this E-Mail alert. They are:
- "The Royal Commission will consider further measures that build the skills of educators in supporting students with disability, including awareness of the Disability Discrimination Act and the Disability Standards for Education, implementation of reasonable adjustments, and responding to behaviours of concern";
- "The Royal Commission will consider ways to strengthen and more effectively enforce obligations of educators in respect of enrolment of students with disability, as set out in the Disability Discrimination Act and Disability Standards for Education"; and
- "The Royal Commission will further consider mechanisms by which the obligations to make reasonable adjustments, as set out in the Disability Discrimination Act and Disability Standards for Education, could be strengthened and more effectively enforced, including improving awareness and understanding of these obligations among educators".
It is becoming very clear that the Royal Commission has (unfortunately) uncovered many shortcomings in the education sector in relation to students with disabilities. It also seems quite clear from some of the language used in the 'Areas for Further Inquiry' including phrases such as:
- 'will consider further measures';
- 'will consider ways to strengthen';
- 'effectively enforce obligations'; and
- 'further consider mechanisms';
that the Final Report will bring with it recommendations for significant change.
Take Home Messages
We would encourage you to:
- review the Report. It can be found at Public hearing 7 report - Barriers experienced by students with disability in accessing and obtaining a safe, quality and inclusive school education and consequent life course impacts (royalcommission.gov.au); and
- keep abreast of the Royal Commission's activities by subscribing to its mailing list (located on its home page).
We will of course be issuing further alerts regarding the finalisation and implementation of the report's recommendations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.