Many parents have made complaints under discrimination legislation against DET in response to the DET’s refusal to provide basic supports for children, such as speech pathology support, behaviour plans or an integration aide.
In a recent article published by the UK Daily Mail, a spokesperson for the DET said this about restraint and seclusion in government schools:
‘In the last five years, in every student disability discrimination case involving the Department of Education that has been decided by a court, the courts have wholly dismissed the applicants’ claims,’ Read more:
The implication of this comment is that the DET has never been at fault when allegations of discrimination have been made against it. This statement is misleading the public.
Numerous discrimination cases in relation to education have been lodged at the Federal Court of Australia and VCAT in the last ten years. The successfully defended discrimination cases involving children with disabilities and education at the Federal Court of Australia in Victoria to date consist primarily of several judgments from one judge. There is also a decision from a second judge who refers to the decisions of the first. There are numerous judges at the Federal Court, and numerous judges who have been allocated education complaints.
There are far fewer decisions than there are complaints. This is due to the fact that most complaints are settled by DET before trial, and therefore do not run.
The DET is in a position to be able to choose which judges to run a case before, and which judges it should avoid running a case before and should therefore settle. Such judgment is exercised by DET, and as a result of this strategic approach towards litigation against it, DET is able to control case law in the area of education discrimination.
Whether this is an appropriate approach for a model litigant and an education department to discrimination cases involving vulnerable children, is questionable.
Multiple cases every year at VCAT are settled. There has been no systemic change as a result.
Members of the public who wish to have a more accurate picture of the DET’s history in relation to these matters should formally request de identified information on the number of cases that the DET have settled in the disability discrimination education area and the cost to Victorian taxpayers of the legal fees and settlement amounts.
In 2023, hundreds of lawsuits were lodged against the Department of Education for physical, psychological and sexual assault. https://www.theguardian.com/australia-news/2023/jan/30/victims-allege-sexual-abuse-victoria-government-state-schools
From the media reports, it seems that the student victims were in the main without disabilities. The difference in response from the Department of Education could not be more stark when compared with the response over the last 20 years to the abuse of students with disabilities. The State of Victoria set up a Board of Inquiry and made an apology to the victims. It is noted that while these assaults were brought to the Department’s attention years ago, it was the lodging of civil suits by lawyers that resulted in action.