Michelle Griffin, August 26, 2011
VICTORIAN education authorities insist they have the right to restrict the number of integration aides and other specialists that they hire - even if it means discriminating against students with disabilities.
And the state says it would cost almost $1 billion if it had to to hire an integration aide for every student with an IQ of 75 or less, which it could not afford.
The lawyers for Victoria's Education Department are arguing that states' rights trump the Federal Disability Discrimination Act in a submission to a discrimination case currently being considered by the Federal Court.
Advertisement: Story continues below
Jade Sievwright, a Victorian teenager with an IQ of around 70, is suing the Education Department for discrimination, claiming it failed to provide her with the integration aide and speech therapist she needs to reach her full potential.
But in a late submission to the case, the Education Department is arguing that even if it is found to have discriminated against Ms Sievwright by failing to provide her with a full-time aide and a speech therapist, "it is beyond Commonwealth legislative power" to compel the state to hire these education aides.
The submission cites a 1995 High Court decision in a dispute about the awards of state public servants. In that case, the High Court ruled that states have the right to determine the size and nature of their workplace.
The submission in the latest case argues that, if failing to provide Ms Sievwright with an aide and speech therapist is found to be discriminatory, this would mean that the Education Department had not employed "sufficient numbers of aides to provide full-time assistance to students in Jade's IQ cohort and to employ sufficient numbers of speech therapists to provide speech therapy on demand to all students assessed as requiring such therapy".
Their submission states that it would cost $975 million to provide full-time integration aides to all students with an IQ of 75 or less in the state school system, and would mean employing 20,000 staff across 1539 schools - an average of 13 staff per school.
The submission states that the Act "interferes with the right of the State to determine the number and identity of aides and speech therapists it will employ in the Department, and by extension, the degree to which it will provide aides to students in classrooms and allied health services (like speech therapists) in a school setting".
This argument on constitutional grounds has horrified disability advocates, who fear it may have serious ramifications for other discrimination cases. "Put simply, the state of Victoria's argument is that even if the Federal Court decides a child requires a full-time aide, it cannot order the state to provide it because to do so would amount to interfering with a basic function of the state," said solicitor Gabriel Kuek of Access Law, the firm representing Ms Sievwright.
"If successful, that argument will have very significant repercussions as it would affect every single disabled child in Australia. It would substantially diminish the protections the Disability Discrimination Act provides to disabled children."
Stephanie Gotlib, executive officer of national peak body Children With Disability Australia, said parents across Australia regularly used the Federal Disability Discrimination Act to seek extra support for their children in school.
"The Department of Education should have a commitment to the Disability Act, not trying to weasel their way out of their legislative responsibilities," she said.
But the Federal Disability Discrimination Commissioner Graeme Innes does not believe that any ruling in this case would have widespread implications for the disabled.
"The court could still find that the student had been discriminated against, but also that the department does not have to hire a particular person," he said.
Mr Innes said families of disabled children frequently took discrimination cases to the Federal Court, and education departments were often required "to make reasonable adjustment" of their budgets and staffing to provide extra help to the children in question - without being required to provide the employment of specific aides or teachers.
Education Minister Martin Dixon could not be reached for comment. The case resumes in the Federal Court in late September.