Chapter 2 - Issues
2.1
This chapter briefly outlines the broader context
relating to the Bill, followed by a discussion
of key issues and concerns raised in submissions.
Context of the Bill
2.2
The stated objects of the DDA are:
(a)
to eliminate, as far as possible, discrimination
against persons on the ground of disability in a range of areas, including
education;
(b)
to ensure, as far as practicable, that persons with
disabilities have the same rights to equality before the law as the rest of the
community; and
(c)
to promote recognition and acceptance within the
community of the principle that persons with disabilities have the same
fundamental rights as the rest of the community.[4]
2.3
Section 31 of the DDA gives the Attorney-General the
power to formulate disability standards in certain areas, including education
of persons with a disability. Under subsection 31(2), standards made by the Attorney-General
must be tabled in parliament. Standards can be amended by parliament under
subsection 31(3). The Explanatory Memorandum explains that the purpose of
standards is 'to clarify and elaborate the obligations in the Act'.[5] Under section
32 of the Act, it is unlawful to contravene a disability standard made under
the Act. At the same time, under section 34, compliance with a disability standard
is a defence to a complaint made under the Act's general provisions.[6]
2.4
In his second reading speech introducing the Bill,
the Attorney-General stated that the Bill is 'an
important precursor to the formulation of disability standards for the education
of people with disabilities'.[7] The Attorney
General explained that the government released a final draft of proposed Education
Standards in June 2004.[8]
2.5
These draft Education Standards have been developed
over a long timeframe. The starting point was in 1995, with an agreement of the
Ministerial Council on Education, Employment, Training and Youth Affairs
(MCEETYA) to establish a taskforce to oversee the development of disability standards
for education under the DDA.[9] According to
the joint submission from the Attorney-General's Department and the Department
of Education, Science and Training (DEST), the draft Education Standards have
been the subject of extensive consultation.[10]
2.6
The draft Education Standards and proposed amendments
have also been the subject of a number of previous inquiries and reports. In
December 2002, the Senate Employment, Workplace Relations and Education
References Committee report into Education
of Students with Disabilities recommended that Disability Standards for
Education should be formulated, and that the Commonwealth 'take the necessary
legislative action to put the education standards beyond legal challenge'.[11]
2.7
The Productivity Commission also conducted a recent review
of the DDA, which reported earlier this year. This review was wide-ranging, and
included consideration of disability discrimination in the education sector.[12]
2.8
Aspects of these reports will be considered as relevant
below.
Key issues raised in submissions
2.9
Some submissions were supportive of the proposed
amendments contained in the Bill,[13] and indeed some
were keen to see the Bill passed as soon as
possible.[14] Other
submissions felt that the Bill had significant
problems and would fail to achieve the stated aim of fully supporting the draft
Education Standards.[15]
Many submissions raised broader issues relating to the draft Education Standards
and their implementation.
2.10
The following key issues were raised in submissions and
will be considered in turn below:
-
the extension of the defence of 'unjustifiable
hardship';
-
funding and costs relating to implementation of
the Education Standards;
-
the process for finalising the draft Education Standards;
-
the content of the draft Education Standards; and
'Unjustifiable Hardship'
2.11
Some submissions raised concerns with the proposed subsection
22(4), which would extend the defence of 'unjustifiable hardship' in education
to post-enrolment situations.[16] Currently,
the defence of 'unjustifiable hardship' can be claimed in relation to refusing
or failing to accept a person's application for enrolment, but not in relation
to post-enrolment aspects of education to which the DDA applies.[17]
2.12
The Australian Learning Disability Association (ALDA)
was particularly concerned about this amendment and its possible impact on
students with learning disabilities not apparent at enrolment:
Learning disability is identified only within a learning
environment and frequently well after enrolment. Currently learning disability
does not come within the State schools sector's definition of disability
eligible for funding. Therefore students who are assessed as having a learning
disability whilst in an education setting could become even more vulnerable ...
ALDA is concerned about what will happen to these students if unjustifiable
hardship provisions are extended beyond the post enrolment period.[18]
2.13
On the other hand, the Australian Federation of
Disability Organisations (AFDO) felt that, while the extension of the
unjustifiable hardship defence would lead to a reduction in the rights
currently enjoyed by people with disabilities, the change would also:
... facilitate the introduction of the Education Standards which
will result in greater protection of people with disabilities by setting out
the obligations of education providers in complying with the Act at enrolment
and throughout participation in education.[19]
2.14
In support of the amendment, the Human Rights and Equal
Opportunity Commission (HREOC) argued that the Bill
and proposed Standards do not substantially alter existing rights and
obligations under the DDA.[20] HREOC also submitted
that the extension of the defence of unjustifiable hardship simply 'removes a
source of confusion arising from a defect in drafting, rather than
substantively altering the existing law'.[21]
2.15
During his second reading speech, the Attorney-General
pointed to the Productivity Commission's recommendations in its review of the
DDA.[22] The
Productivity Commission found that the current limited scope of the
unjustifiable hardship defence might actually:
... create incentives for educators to avoid or discourage the
enrolment of students with disabilities, in case those students might need
adjustments that would impose an unjustifiable hardship later in their
education.[23]
2.16
The Productivity Commission concluded by recommending
that the DDA 'be amended to allow an unjustifiable hardship defence in all
areas of the Act that make discrimination unlawful', including in education.[24]
2.17
The Public Interest Advocacy Centre (PIAC), Family
Advocacy and People with Disability Australia (PWD) opposed the extension of
the defence of unjustifiable hardship. The first concern of these organisations
was that the provisions need to make it clear to education providers that they:
... must provide non-discriminatory treatment up to the point of
unjustifiable hardship and if there are measures that will provide for less
discriminatory access short of those that impose unjustifiable hardship, such
measures must be implemented.[25]
2.18
To address this concern, these organisations suggested
the insertion of the word 'necessarily' between the words 'would' and 'impose'
in proposed subsection 22(4).[26]
A duty to make reasonable
adjustments?
2.19
Further, PWD pointed out that the Productivity
Commission's recommendation to extend the defence of unjustifiable hardship was
made in conjunction with a recommendation to amend the DDA to expressly provide
for a general duty to make reasonable adjustments.[27] PWD argued
that:
The Productivity Commission saw the two issues as linked,
referring to the extension of the unjustifiable hardship defence as a 'check
and balance' to the proposed and even more fundamental general duty to provide
reasonable adjustments.[28]
2.20
PIAC, Family Advocacy and PWD also pointed out that the
Bill would introduce the term 'reasonable
adjustment' into the DDA,[29] but this term
would not be defined in the Act. They therefore suggested that a number of definitions
be included in the Bill, including 'adjustment',
'reasonable adjustment' and 'substantive equality'. They noted that these
definitions were drawn from the draft Education Standards (both the current
draft and the draft dated July 2002), and, again, that the Productivity
Commission had recommended that the concept of 'reasonable adjustments' be defined
in the DDA.[30]
These organisations argued that without such definitions in the Act itself, the
Bill would not achieve its primary goal of
ensuring that the draft Education Standards were fully supported by the DDA.[31]
2.21
There was also debate in some submissions as to whether
or not there is an implied duty to make reasonable adjustments in the DDA. In
its submission, PWD claimed that the decision of the High Court in Purvis v New South Wales (Department of Education and Training)[32] (Purvis) had resulted in 'substantial
doubt as to whether there is any duty to provide reasonable adjustments'.[33] The PWD
argued that the concept was of 'such fundamental importance' that it should be
defined within the Act itself 'to ensure the duty is clear and to avoid later
legal arguments...'.[34]
2.22
However, HREOC pointed to the decision in Purvis, and a more recent decision of
the Full Federal Court in Catholic
Education Office v Clarke,[35] which it suggested:
... confirm that under the existing provisions of the DDA, a
requirement for reasonable adjustments to accommodate students with
disabilities may arise from the prohibition on indirect discrimination, rather
than direct discrimination. As a result, these obligations are already
qualified by the concept of reasonableness. [36]
Funding and costs
2.23
The Explanatory Memorandum states that 'it is not
anticipated that the passage of this Bill will
have any financial impact'.[37] However, an
area of considerable dispute in most submissions related to the costs
associated with implementation of the draft Education Standards supported by
the Bill.
2.24
The joint submission from the Attorney-General's
Department and DEST maintained that:
... if providers are compliant with their existing obligations
under the DDA, the cost of providing for students with disabilities should not
increase once the Standards are implemented.[38]
2.25
However, the submission also noted that:
Notwithstanding this, some providers have persistently raised
concerns about the potential for increased costs of providing for students with
disabilities once the Standards are implemented.[39]
2.26
The submission pointed out that, to address these
concerns, DEST commissioned a cost-benefit analysis of the implementation of
the draft Education Standards, as part of the preparation of the Regulation
Impact Statement for the Standards.[40] The analysis
identified a 'huge variation' in the maximum marginal costs claimed by the
States and Territories, but concluded that the 'overall benefits of the
Standards would exceed their associated costs'.[41] This analysis
also concluded that:
-
the principal impact of the Standards would be
to provide increased clarity for education providers, as to their obligations
under the DDA, and for students with disabilities, as to their entitlements
under the DDA; and
-
professional development to support the
introduction of the Standards would be the only reasonable cost attributable to
the Standards.[42]
2.27
Consistent with this last conclusion, the
Attorney-General's Department and DEST stated that:
In line with his offer at the 2003 MCEETYA meeting, the Minister
for Education, Science and Training will contribute to the development of
professional development materials to support the implementation of the
Standards.[43]
2.28
The submissions from the ACT Department of Education
and Training and the Tasmanian Department of Education agreed with the
cost-benefit analysis prepared for DEST.[44] In the view
of the Tasmanian Department of Education:
... the Standards serve to clarify requirements under the Act and
do not impose any additional responsibilities on education providers. In fact,
the Standards have advantaged education providers by extending the application
of ‘unjustifiable hardship’ beyond enrolment.[45]
2.29
The Tasmanian Department of Education agreed that 'the
main costs associated with the implementation of the Standards relate to
professional learning to increase awareness among education and training
providers of the requirements detailed in the Standards'.[46] The
Department noted that the Tasmanian Government had provided:
... additional funding over the next triennium to support
professional development for all school staff relating to compliance with the
Act through the Education Standards.[47]
2.30
Other state governments disputed the analysis prepared
for DEST. For example, the Western Australian Department of Education and
Training (WA DET) argued that the projected cost for the implementation of the Standards
estimated by the Commonwealth was 'manifestly inadequate'.[48] According to the
WA DET, the implementation costs would go well beyond professional development.[49] The WA DET
also said that:
The Standards will increase the expectations for provision of
support and services by people with disabilities and their guardians. The
implementation of the Standards is likely to have the effect of increasing
self-identification of parties as being disabled.[50]
2.31
Similarly, the Northern Territory Department of Employment,
Education and Training felt that there would be a number of transitional costs
associated with the implementation of the Bill
and associated Education Standards. The Department cited, for example, costs
associated with infrastructure enhancement, professional development, provision
of special equipment, information provision and monitoring of implementation.[51]
2.32
Other submissions expressed the view that the Bill
and associated Standards would not result in significant additional costs.[52] As outlined
earlier, HREOC argued that the Bill and proposed
Standards do not substantially alter existing rights and obligations under the
DDA. It also noted that 'very closely equivalent rights and obligations' are
provided for in legislation in each State and Territory.[53] HREOC recognised
that 'additional support from all governments for equal educational opportunity
for students with disabilities is desirable'. However, HREOC submitted that:
... we do not consider that arguments for significant additional
support can be soundly based on additional costs said to arise from the
introduction of Disability Standards in this area.[54]
2.33
The Centre for Special Education and Disability Studies
noted that most major education providers 'are likely already meeting most or
all of the proposed standards' and that, in its opinion, 'the implementation of
the standards will not result in the need for significant changes in
school-based or system-wide practice.'[55]
2.34
The AFDO disagreed that there would be costs associated
with professional development requirements.[56] In contrast,
ALDA agreed that adequate funding should be made available for professional
development 'to ensure that the Education Standards are well understood by all
education sectors'. The ALDA believed that this was needed particularly because
of low awareness of the DDA, and of the fact that learning disability is
regarded as a disability under the DDA.[57]
2.35
More general funding issues were also raised relating
to the education of students with disabilities. For example, the Australian Associations
of Christian Schools (AACS) was concerned about the funding differential
between government and non government schools.[58] The AACS
argued that:
These cost differentials will be exacerbated with the
introduction of the Disability Standards for Education into the DDA 1992. While
non government schools may be able to sustain cases of 'unjustifiable hardship'
it is inconsistent with both the purpose and intention of Christian schooling
as well as the Act that students with disabilities should be treated
differently to other students.[59]
2.36
The AACS concluded that 'funding for students with
disabilities should follow an individual student with a disability if he or she
changed to, or enrolled in, a government or non government school'.[60]
Process for finalising the
education standards
2.37
Another concern raised in submissions related to the
process and timing for finalising and tabling the Education Standards in
parliament.
2.38
As noted earlier, the Commonwealth government has
released a final draft of the Education Standards. However, some submissions
were concerned that there was no specific timeframe for introducing the Standards
into parliament, and no guarantee that the Standards would remain intact and
unamended in that time. For example, the ALDA submitted that:
Within the disability community there is a cynical belief that
the Education Standards will never happen. There is a further belief that those
with a vested interest will keep trying to delay the promulgation of the
Standards, thereby giving time to 'water them down'. ALDA is concerned about
the ongoing delays and the fact that there is no timeframe for when the
Standards will be introduced.[61]
2.39
Similarly, the Royal Blind Society supported the content
of the final draft of the Education Standards and noted that it 'would be
concerned however if the draft standard was to be weakened in order for it to
be adopted by Parliament'.[62]
2.40
On the other hand, the AFDO submitted that, while they
would have preferred the Standards to be introduced into parliament at the same
time as the Bill:
... the Commonwealth Government has assured our members that the
Standards will be introduced as drafted at the earliest opportunity and a delay
in the passage of the Bill would be unnecessary
and a disadvantage to the benefits the Standards provide people with
disabilities and their families.[63]
2.41
The AFDO concluded by urging the Senate to 'ensure the
tabling of the Standards as quickly as possible to allow their passage as
delegated legislation through Parliament.'[64]
2.42
The Committee notes that the Explanatory Memorandum
states that 'the Government intends that the Attorney-General will formulate
and table the draft Education Standards in Parliament immediately following the
passage of this Bill.'[65] This commitment
was reiterated in the joint submission from the Attorney-General's Department
and DEST.[66]
Content of the standards
2.43
Many submissions also commented on the content of the
final draft of the Education Standards. As outlined above, some strongly supported
the final draft of the Education Standards.[67] For example,
the AFDO submitted that the proposed Standards are:
... historic and once accepted by Parliament will clarify for
students with a disability and their families their rights under the Act to
participate and learn in any Australian education institutions without
discrimination. After eight years of development and consultation, people with
disabilities are excited and relieved that the Standards are ready to be
introduced.[68]
2.44
On the other hand, People with Disability Australia
(PWD) noted that, while they supported the draft Standards in the form they
took in July 2002, they felt that the Bill and current draft Education
Standards 'are seriously flawed'.[69] PWD believed
that the balance had 'tipped too far towards the interests of education service
providers'.[70]
2.45
Similarly, PIAC and Family Advocacy outlined a number
of concerns with the current draft Education Standards, and in fact suggested
that the Committee should expand its terms of reference and time for
submissions to enable consideration of the purpose and content of the draft
Education Standards.[71]
Family Advocacy even concluded that:
... the draft Standards, as currently worded, reduce the rights of
students with disability. We have carefully balanced the onerous nature of the
current complaints system against the draft Standards and believe that the
absence of a DDA Standard for Education would be vastly more beneficial for
students with disability than the promulgation of the current draft Standards.[72]
2.46
Similarly, the Australian Education Union (AEU), while
stating that it was a strong supporter of the need for Disability Standards in
Education, was 'disappointed' with the Standards in their current form. For
example, the AEU was concerned that the Standards would not clarify:
-
where any responsibility lies between schools
and Departments for meeting the needs of students; nor
-
whether a student/parent has the right to insist
on a particular school or setting as opposed to the Department nominating the
suitable facility.[73]
2.47
In contrast, HREOC supported the draft Education
Standards, believing that there would be:
... benefits in standards which set out more fully and clearly the
principles to be applied and which give some indications of required
performance. There would clearly be some advance in these respects compared to
the current position under the DDA if standards were adopted in or close to the
form of the draft education standards currently being considered.[74]
2.48
HREOC continued:
This form of standards will not resolve all issues itself but it
should provide a clearer basis for formation of policies by education providers
and for discussions between providers and students or parents in individual
cases, so as to reduce the need for access and inclusion issues to result in
DDA complaints; and if complaints are made standards should assist in resolving
them.[75]
2.49
HREOC concluded that:
While the Commission considers that the Bill
and the proposed Disability Standards for Education do not impose substantial
new obligations we also wish to emphasise our view that they do not
substantially diminish existing rights and responsibilities.[76]
Other issues
Definition of 'education provider'
2.50
A number of submissions raised concerns that the proposed
new definition of 'education provider' in section 4 of the DDA used the word
'means' rather than 'includes' and would therefore be an exhaustive definition rather
than an inclusive definition.[77] PWD believed
this could cause 'unnecessary problems for complainants'.[78] These
submissions also noted that this provision was inconsistent with the
Explanatory Memorandum, which used the word 'include'.[79]
The Committee's views
2.51
The Committee acknowledges the submissions that were
strongly supportive of the Bill and wanted to
see it passed as soon as possible. The Committee notes the concerns raised in
other submissions, particularly in relation to the extension of the defence of
'unjustifiable hardship'. However, the Committee considers that the concerns
raised are not sufficient to prevent the passage of the Bill.
2.52
In relation to funding and costs associated with the
implementation of the Bill and the draft
Education Standards, the Committee supports the view that the Bill
and associated Standards are merely clarifying the existing law. In addition,
the Committee recognises the government's commitment to contribute to the
development of professional development materials to support the implementation
of the Education Standards.
2.53
Finally, the Committee encourages the government to
introduce the final Education Standards into parliament as soon as practicable
after the passage of the Bill.
Recommendation 1
2.54
That the Bill be passed
without amendment.
Senator
Marise Payne
Chair