PETER MICKELBUROUGH
A DISABLED boy who claims he was assaulted, locked in a “time-out” room and physically restrained during six years at various state schools has won a “substantial” compensation payout from the government.
But its size will remain hidden from the public, despite a Federal Court judge’s expression of “disquiet” over this policy of secrecy by Victoria’s Department of Education.
Jason Gray suffers from autism, attention deficit hyperactivity disorder, oppositional defiant disorder, severe pragmatic language impairment and impairment of his memory, processing, reasoning and fine motor skills.
Sharlene Gray, suing on his behalf, claimed that from mid-2008 to mid-2014 the department’s employees discriminated against her son, in breach of his human rights.
She claimed that he was restrained and assaulted by being struck in the throat, and one school wouldn’t enrol him.
The department broadly denied the allegations.
But having agreed to settle the claim, the department argued in court for the terms of the settlement to remain confidential, so as not to encourage a flood of similar claims.
It argued disability discrimination claims were largely without merit and built on “cut and paste” allegations.
The department told the court it only chose to settle such claims because paying compensation was cheaper than going to trial, where even if it won it would usually be unable to recover its costs.
The department conceded its normal practise was to require a confidentiality agreement and that all but one of its last 21 disability discrimination settlements were secret.
Justice Bernard Murphy granted the gag order, saying although it was clear Mr Gray’s counsel did not oppose making the settlement public, he had made no submissions to that effect.
He was also critical of the Human Rights Commission for declining his invitation to intervene.
“I continue to have a level of disquiet in relation to the department’s submissions on that question,” he said.
“Where parents have well-founded concerns that their child has suffered disability discrimination in accessing or using state educational services I can see no public interest in keeping them in the dark as to the practical availability of compensation.”
Judge Murphy said the department’s view that such claims were without merit “beggars belief” and that Mr Gray’s case was an example of one case that did have merit.
A writ filed on Mr Gray’s behalf by his mother alleged the department failed to properly manage the behaviour caused by his disabilities and that its failure to make “reasonable adjustments” for his condition as required under the Disability Discrimination Act, meant Mr Gray suffered trauma and ongoing anxiety.
The department broadly denied these allegations and claimed placing Mr Gray in a time-out room was appropriate way.
It also challenged the portrayal of the allegations of physical restraint and assault, claiming the incidents either did not occur or were not as severe as alleged.
It said the range of behavioural strategies used were reasonable and based on Mr Gray’s individual circumstances and needs, with no potential alternative actions put forward.
The department said the school that refused Mr Gray enrolment had offered to teach him one day a week and increase this over time.