Bills Digest No. 49, 2004–05
Disability Discrimination Amendment (Education
Standards) Bill 2004
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Disability
Discrimination Amendment (Education Standards) Bill
2004
Date
Introduced: 17
November 2004
House: Senate
Portfolio: Attorney-General
Commencement:
The formal provisions
commence on Royal Assent. The substantive provisions commence on
Proclamation or, if this does not occur within six months of Royal
Assent, the first day after that period.
To amend the Disability
Discrimination Act 1992 (DDA) to enable the introduction of
Disability Standards for Education.
The DDA provides for the formulation of standards in section 31.
This section covers a range of areas for which standards can be
formulated:
-
Transport
-
Education
-
Employment
-
Accommodation
-
Administration of Commonwealth Government Laws & Programs,
and
-
Access to Public Buildings (added following an amendment to the
DDA on September 23, 1999).
There are already standards governing Public Transport and the
draft standards for Access to Premises were released earlier this
year.
Standards made under section 31 are essentially delegated or
subordinate legislation, made on the basis that Parliament cannot
be expected to legislate for the minutiae of government and there
will be many aspects of the standards which must be changed
regularly or which need detailed consideration not amenable to
parliamentary enactment.
Standards are designed to deal with systemic discrimination
without the need to resort to proving discrimination through a
complaints based process under the Human Rights and Equal
Opportunity Commission ('HREOC'). Given that section 32 makes it
unlawful not to comply with standards in force, the need for a
victim to take a case to HREOC regarding discrimination they have
experienced may be short-circuited. The use of standards in the DDA
represents an innovative approach to anti-discrimination measures
in Australia.
The current Bill is designed to clear the way for the
introduction of standards in the area of education. It makes some
modifications to the DDA which the Government feels are necessary
before the Disability Standards for Education can be introduced.
According to the Joint Media Release from the Attorney-General and
the Minister for Education, Science and Training [t]he Disability
Standards for Education will be formulated and tabled when the Bill
passes the Parliament. (1)
The Disability Standards for Education (the Standards) have been
developed after a fairly lengthy process, starting in 1995 with the
formulation of the DDA Standards Project (an advisory body composed
of disability interest groups) which, through the relevant
Ministers, prompted the involvement of the Ministerial Council on
Education, Employment, Training and Youth Affairs (MCEETYA), which
established a Taskforce to oversee the developments of appropriate
standards. Various processes continued until more recently there
was a paper commissioned by the Department of Education, Science
and Training (DEST). The paper was developed at the behest of the
Australian Education Systems Officials Committee (AESOC), which
used an independent consultant to examine the issue of the costs of
implementing the Standards. This paper, The Net Impact of the
Introduction of the Disability Standards for Education, was
published by the Allen Consulting Group in June 2003 (who also
noted the report was prepared in a very short time-frame and is
heavily reliant on written and verbal information provided by key
stakeholders ).(2) The Productivity Commission has also
recently produced a Report on the costs and benefits of the DDA
(the Review of the Disability Discrimination Act 1992)
which the Government believes supports the need for standards.
(3)
In July 2003 the Minister for Education, Science and Training,
Dr Brendan Nelson MP, issued a Media Release announcing the
Government s intention to move unilaterally to implement the
Disability Standards for Education. The Disability Discrimination
Amendment (Education Standards) Bill was introduced into Parliament
on 12 August 2004, but lapsed when the election was called. This
Bill is in identical form.
The DDA gives legislative authority to issue standards to the
Commonwealth Attorney-General. The involvement of the various State
and Territory educational authorities through MCEETYA involved
additional consultation beyond that required by the DDA s
legislative framework, but seems to have struck problems. Some of
the States and Territories had expressed concerns at the financial
implications of the Standards (only Tasmania and the ACT were
supportive of the Commonwealth s proposals). Dr Nelson commented
that the States and Territories had wildly different assessments of
the impact on their budgets of implementing the standards
.(4)
The independent report by the Allen Consulting Group assembled
the various costings and commented on the various differences. It
noted that only reasonable adjustments are needed to
comply with both the DDA and the proposed Standards. An educational
provider can be exempt from making an adjustment where it is proven
that such an adjustment would cause unjustifiable
hardship. Nevertheless the quantum and scope of cost estimates
provided differed significantly and were influenced by providers
interpretation of their obligations under the measures outlined in
the Standards. (5)
The Report also noted that the costs provided by educational
providers appeared to have blurred costs which are one-off and
those which may be ongoing. Furthermore the estimates were often
prepared with different timing bases and used different assumptions
as to the estimated number of students with disabilities. This all
meant that any effort to achieve a comprehensive overview of costs
was fraught, and that a focus on the requirements of the DDA itself
needs to be taken into account. The notable feature of the
Standards is that, legally speaking, they do not expand
requirements already in place under the legislation, they simply
systematise and clarify them. Nevertheless the Report was clear
that their introduction would involve some additional costs to
education providers.
After Dr Nelson s declaration that he would act unilaterally
regarding the Standards, Members of the Disability Discrimination
Act Standards Project applauded Dr Nelson s leadership, saying
We are disappointed that some of the States and
Territories attempted to once again delay the introduction of the
Education Standards.
To our delight, the Commonwealth Minister, Dr
Brendan Nelson, has exercised his leadership. Dr Nelson recognises
that after seven and half years of development, the Education
Standards are now in agreement, and that legal and financial
concerns have been resolved through independent
inquiry.(6)
The Allen Consulting Group identified education providers
concerns that there will be increased associated costs with the
Standards. They believe that while the Standards may not legally
expand the requirements of the DDA they change the nature of the
enforcement from having been passive to requiring active
compliance. The Standards may also increase the number of students
(and their guardians) expecting to receive services. It follows
that increasing the awareness of the DDA s provisions and
highlighting how they apply to education will probably mean that
more people with a disability are made aware of their rights and
seek to utilise them. The Allen Group Report also identified the
fact that the definition of disability used in the DDA is broader
than many definitions used elsewhere by the Commonwealth, including
the criteria for funding grants being made to cater for the needs
of those with disabilities .
Wendy Currie, a Research Officer with the NSW Teachers
Federation, has commented that while the Standards set out
definitions and requirements they don t make it clear whose
responsibility it is to ensure compliance: the school, the system
or the state government. She also expressed a concern that 80 per
cent of the money set aside in the Federal Budget for
implementation of the Standards went to private
schools.(7)
As stated above, it is legally clear that the Standards do not
change the Act. The Standards subsist within the framework of the
legislation and can neither expand nor contract the coverage of the
Act. However the concerns raised by education providers as
identified in the Allen Consulting Group s study do identify
concerns with how the funding of the impact of the Standards will
occur. The concern with the different definitions of disability in
use raises questions of who is responsible for funding any
necessary changes (and under which definition of disability they
are operating).
In contradistinction to the proposed Standards the current Bill
does in fact modify the Act itself. These changes are mostly
clarificatory and indeed can actually serve to exempt education
providers from the possible effects of the Standards. The
spokesperson for the DDA Standards Project argues that by extending
the current unjustifiable hardship provisions (at the moment the
unjustifiable hardship provisions in the area of education only
apply to enrolment), this Bill will, if anything, financially
benefit education providers by widening the potential defence . The
Allen Consulting Group expressed hesitation with respect to this
logic, but do confirm that some smaller schools might find a
benefit. They also assert that there are costs associated with the
Standards but that the costs will be outweighed by the
benefits.
Item 1 of Schedule 1 introduces a new definition of education
provider which is broader than the pre-existing definitions which
cover educational authorities and educational institutions. Under
the Bill an education provider will encompass both the first two
definitions and also bodies which develop or accredit curricula or
training courses.
Item 2 extends the existing definition of discrimination in
education to encompass the creation or accrediting of curricula or
training courses which exclude those with a disability (or those
associating with someone with a disability). This extension is in a
sense offset by the introduction of a new unjustifiable hardship
provision in Item 3. The new subsection introduced in Item 3
confirms the Act s pre-existing approach and ensures that
educational providers do not have to avoid discrimination in
education when it would impose an unjustifiable hardship to do
so.
Finally Item 4 introduces some clarificatory provisions into
section 31. These amendments clarify that reasonable adjustments
must be made in order to comply with standards and avoid disability
discrimination. It also introduces provisions which allow the
Standards to require that education providers develop strategies
and programs to stop harassment or victimisation of the disabled,
along with provisions which clarify that such requirements for
training are not subject to the unjustifiable hardship
provisions.
Concluding Comments
Since the announcement by Dr Nelson that the Commonwealth would
proceed with the Disability Standards for Education there does not
seem to have been a great deal of public comment by interested
bodies. It seems that the major concerns with the Standards and
this associated Bill are more to do with questions of funding than
they are to do with the principles of the issues. The Allen
Consulting Group was clear in their Report that a staged
introduction process would go some way towards alleviating such
funding problems, and also highlighted the economic and other
benefits associated with increasing education levels amongst the
disabled population.(8)
-
The Hon Dr Brendan Nelson MP, Minister For Education, Science
And Training and the Hon Philip Ruddock MP, Attorney-General,
Government Acts on Discrimination Against Students With
Disabilities , News Release, 17 November 2004.
The Report is available from the DEST website at http://www.dest.gov.au/Research/docs/july_03/DDA_Standards.pdf
-
This account of the historical developments is taken from a
number of sources, but draws heavily from the Regulation Impact
Statement prepared jointly by the Department of Education, Science
and Training and the Attorney-General s Department.
-
Review of the Disability Discrimination Act 1992,
Report No.30, Productivity Commission Inquiry Report, July
2004.
http://www.pc.gov.au/inquiry/dda/finalreport/index.html
- Dr Brendan Nelson MP, Minister for Education, Science and
Training, Most State And Territory Education Ministers Vote Against
Disability Standards , Media Release, 11 July, 2003 MINCO 7/03,
http://www.dest.gov.au/ministers/nelson/jul_03/minco703.htm
The Net Impact of the Introduction of the Disability
Standards for Education, The Allen Consulting Group, June
2003, pp. 5 & 7.
http://www.dest.gov.au/Research/docs/july_03/DDA_Standards.pdf
-
Disability Discrimination Act Standards Project, DDA Standards
will be law , Media Release, 11 July 2003,
http://members.ozemail.com.au/~ddasp/Media%20Releasesdda703.htm
-
Wendy Currie, Impact of disability standards is unknown ,
Education, vol 85, No 7, 9 August 2004, p. 10.
-
The Allen Consulting Group, The Net Impact of the
Introduction of the Disability Standards for Education, June
2003. See chapter 5 on the benefits of the changes generally and
chapter 6 and its conclusions on the wisdom of approaching the
matter slowly, NB p. 58.
http://www.dest.gov.au/Research/docs/july_03/DDA_Standards.pdf
Kirsty Magarey
29 Novemeber 2004
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2004
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