Walker vs State of Victoria and Disability Discrimination

By Rebecca Devitt

DATE: 15 June 2011

A recent Federal Court ruling has highlighted the lack of protection for students who have severe social and behaviourial disabilities.  The Walker family sued the Victorian Department of Education for discriminating against their son who suffers from multiple disabilities including Aspergers Syndrome and dyslexia, but the court ruled in favour of the department and found that no discrimination had occurred against the family.

In the case Walker v State of Victoria (2011), the Walker family claimed that their son, Alex  was not allowed to attend his high school full time during 2007 and was prevented from being on school grounds at lunch and attending school excursions.  The boy, who also has attention deficit hyperactivity disorder was also banned from travelling on a school bus, which meant an 80-kilometre return trip for his mother.

Federal Court justice Richard Tracey in his decision found that the department of education did not discriminate against the family and the department had made every effort to accommodate Alex’s needs, including the funding of an aide to support Alex.  The court noted however, that when Alex was supported one-on-one (full-time) his behaviour was satisfactory and when this changed after a year, his behaviour regressed and he became disruptive.

Commenting on the case, Murray Dawson-Smith, CEO of Autism Victoria stated that his concern was that when receiving one-on-one support Alex appeared to manage school reasonably well and questioned the ability of the school to retain funding for the aide.  Dawson-Smith stated that “given that when he had one-on-one full time support he managed school, I can only suggest that had this continued in the same way with the same set of skills by the aide perhaps the outcome for Alex may have been different”.

The case has raised questions about the ability of Australian law to protect children with a disability from discrimination. According to Bob Buckley, Convenor of Autism Aspergers Advocacy Australia, the case reflects a lack of understanding and support for children with social behavioural disabilities, as the Federal Court consistently referred to the efforts of the student with Asperger’s Disorder to communicate and participate as “misconduct.”

According to Mr. Buckley the Federal Courts decision “supported the harassment by the school of people who complain under the Disability Discrimination Act and the consequent exclusion of people with a disability from participation in their community.”

In Australia, children with a disability, particularly those with a behavioural disability are subjected to routine discrimination. They are excluded from school and denied an effective education when the school does not have the resources it needs to support such students.  In a previous High Court case, Purvis vs NSW, the court decided that a child who behaved in a dysfunctional manner can be excluded from any and all schools. The state has no obligation to educate such a child. This exclusion from education is contrary to the child’s right to an education under Articles 23, 24 and 28 of the Convention on the Rights of the Child.

The Walker family has been ordered to pay the education department’s legal costs.