This is an html version of the paper being distributed with
hardcopies of the draft Standards, as part of the consultation
process. A Rich Text Format
version of the document is also available.
Contents
This paper provides a context for considering the accompanying
Draft Disability Standards for Education which are the focus of
this consultation.
The Disability Discrimination Act 1992 (DDA) seeks to
eliminate, as far as possible, discrimination on the ground of
disability. It places obligations on a range of people
throughout the community – employers, educators, service
providers, building owners, landlords, land owners, clubs and
sporting bodies – to uphold the entitlement of persons with
disabilities to the same rights and opportunities as all other
Australians.
However, the DDA deals only in broad terms with what is
required of education providers for compliance with the
Act. Standards, which may be formulated under section 31
of the Act, aim to clarify these existing legal
obligations. Standards are a form of subordinate
legislation. Once they are approved by Parliament,
compliance with them would satisfy the requirements of the DDA
in relation to the aspects of education that they cover.
Draft Disability Standards for Education (the draft
Standards) are now ready for consideration and comment through
consultation with stakeholder groups. Feedback should help
refine them. If implemented, Standards would then provide
an environment of much greater clarity and certainty about the
requirements of the DDA than currently exists.
The questions to which we seek your responses cover the key
issues arising during the drafting process. We would also
welcome comments on other issues you may wish to raise.
These draft Standards are being put out for consultation by the
Ministerial Council on Education, Employment, Training and Youth
Affairs (MCEETYA) Taskforce on Disability Standards in
Education. MCEETYA includes all Commonwealth, State and
Territory Ministers responsible for education and
training.
At its December 1995 meeting, MCEETYA agreed to establish a
Taskforce on the development of disability standards for
education. In setting up the Taskforce, the Ministers were
keen to ensure that as many stakeholders as possible were
represented. They also had to consider the overall size of
the group, and the need for a balance between the different
sectors of education.
The Commonwealth agreed to chair the Taskforce. The
current chair is Mr Robert Horne, First Assistant Secretary,
Department of Education, Training and Youth Affairs (DETYA). The
Taskforce has:
- two representatives nominated by each State/Territory
Minister, including both school education and vocational
education and training;
- two representatives from the DDA Standards Project, a
group established to represent the disability sector for the
purpose of developing DDA standards;
- one representative from the Australian Vice Chancellors’
Committee;
- one representative from the National Catholic Education
Commission;
- one representative from the Australian National Training
Authority;
- one representative from the National Council of
Independent Schools Associations;
- one representative from the Australian Council for Private
Education and Training; and
- one representative from the Commonwealth Attorney-General’s
Department as “Special Adviser”.
In 1996 MCEETYA endorsed the development of a discussion paper
which canvassed the issues of the feasibility and the
desirability of DDA Education Standards. In 1997 the
Council endorsed a consultation process based on the discussion
paper. The outcome of those consultations was a decision
to proceed with the development of standards.
At its meeting on 31 March 2000, MCEETYA agreed that the
current draft Disability Standards for Education and
accompanying Guidance Notes, should be used as the basis for
further consultation with key stakeholder groups, with the
outcomes of this process to be reported to MCEETYA.
There is no prescribed format for standards. They may be
technical or prescriptive, detailed or general. A first
set of draft Standards was developed in early 1998 at the level
of principle to cater for the diversity of education providers,
settings, sectors and levels. However, this early draft
was too general in nature. The key challenge has been to
reach the degree of certainty and specificity necessary for
disability standards for education, while at the same time
achieving sufficient flexibility to cater for the diversity of
individual learners, education providers and educational
settings.
Subsequent drafting during 1999 and earlier this year aimed
at achieving the required level of certainty and
specificity. For example, ‘measures’ were incorporated
to indicate the kinds of actions or provisions that would enable
providers to meet the standards, thereby adding
specificity. This draft thus combines principle-based and
performance-based standards.
The Australian Government Solicitor has advised that in his
opinion the current draft Standards would meet the legal
requirements of disability standards under the DDA.
Early drafts of the Standards included explanatory material,
considered useful when interpreting the document. This
material is now incorporated in the Guidance Notes attached to
the draft Standards. These Notes do not have legal status
and are not part of the Standards, but nonetheless, are intended
to assist the reader to better understand their scope and
practical application. This is analogous to an Explanatory
Memorandum providing explanation in relation to an Act of
Parliament.
The overall aim of the DDA is to eliminate, as far as possible,
discrimination on the basis of disability. Standards can
help education providers comply with the DDA by clarifying their
obligations and setting out how they can fulfil them.
Equally, the Standards can help students (and prospective
students) with disabilities, or their associates, to understand
their rights to education and training, and how these rights
might be met. Providers must comply with these obligations
to ensure they do not act unlawfully. The longer-term
objective is to improve the education and training opportunities
and outcomes for students and people with disabilities.
Thus, the intention of Standards is that students (and
prospective students) with disabilities will be in a much better
position to assess their rights under the DDA, and education
providers will likewise be given greater guidance on how to
discharge their obligations under the Act.
These draft Standards specify how education and training are to
be made accessible to students with disabilities. They
cover the following five areas:
- enrolment;
- participation;
- curriculum development, accreditation and delivery;
- student support services; and
- elimination of harassment and victimisation.
Each area includes a statement of the rights of students
with disabilities in relation to education and training.
The areas then describe the legal obligations of
education authorities, institutions and providers. Each
area then sets out measures which can be taken and which
will be evidence of compliance with the legal obligation.
The current draft Standards document also:
- defines important terminology used in the DDA and
throughout the draft Standards document;
- broadly identifies education authorities and institutions,
or providers, obliged to comply with the draft Standards;
- describes the scope of the draft Standards; and
- identifies exceptions where compliance is not required.
The draft Standards document is accompanied by a set of Guidance
Notes. As already indicated, Guidance Notes do not in
themselves have legal status. Their purpose is to provide
explanatory material to assist with interpreting the draft
Standards.
A set of Frequently
Asked Questions (FAQs) is included in this consultation
paper, which may also help you to understand the draft
Standards.
A breach of the DDA Standards may generate a complaint to the
Human Rights and Equal Opportunity Commission (HREOC).
Following amendments to the DDA in 1999, which came into force
in April this year, HREOC will now be able to investigate and
achieve settlement of a complaint by means of conciliation
only. Where conciliation is unsuccessful or inappropriate,
the matter can be determined only by the Federal Court or the
Federal Magistrates Service.
Historically, HREOC has focussed strongly on the individual
complaints mechanism. However, while it is important for
individuals to have such a process available, this mechanism has
many limitations. On the part of complainants, these
limitations include:
- delays;
- imbalance of power between complainants and respondents,
such as in relation to capacity to bear costs;
- ‘burn out’ by complainants because of the demands and
the stress of the process;
- dissatisfaction with the results of the complaints
process;
- uncertainty because conciliated settlements do not produce
binding agreements; and
- consumption of a large portion of the anti-discrimination
bodies’ resources, thereby reducing their capacity to
undertake other valuable work such as human rights education
and the conduct of public inquiries.
For providers, the complaints mechanism has equally undesirable
imposts, including:
- targeting of resources, which could be more effectively
used for provision of education and training, into
investigative and legal processes; and
- fostering of adversarial relationships between educators
and students with disabilities, their carers or advocates,
at the expense of partnerships in the education process.
Given these limitations, it may make good sense to implement
disability standards if they overcome these problems. DDA
Standards should:
- reduce the need for complaints by clarifying providers’
obligations;
- provide a defence for complaints in areas covered by the
Standards; and
- have the potential to reduce DDA complaints, the need for
lengthy conciliation and for formal hearing of complaints.
Development of the draft Standards has now reached the point
where further progress requires input from a broader spectrum of
the community. It is expected the Taskforce will report on
the outcomes of the consultations by the end of this year.
We have prepared some specific questions, which you may answer
on-line on this site, to guide you in making your
response or submission. We would also welcome your
comments on any other matters.
It is expected that national bodies, State and Territory
agencies, educational institutions and other groups will make
submissions. If you are commenting as an individual or on
behalf of a State-based group, you might wish to write to the
State contact point, who will also be able to advise on
consultation events in your State. The DDA Standards
Project will be coordinating responses from the disability
sector, who are encouraged to send their input to the DDA
Standards Project National Co-ordinator. You may also
write directly to the Director of the Participation and Learning
Section of DETYA. Addresses for all these contact points
are on the "Contact
Details Page".
The final date for submissions is Friday 24 November 2000.
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