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DISCUSSION PAPER
Disability Discrimination Act
Disability Standards in Education

July 1997

This discussion paper has been prepared by the Taskforce on Disability Discrimination Act Education Standards established by the Ministerial Council on Education, Employment, Training and Youth Affairs.

• Questions and Answers
• Comparison of International Provisions on Disability Discrimination in Education

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Issued July 1997

Additional print copies of this paper are available by contacting:

Copies in alternative formats are available by contacting:

Consultations have closed. This discussion paper is made available for reference.

The views expressed in this discussion paper are provided as the basis for discussion. The discussion paper does not represent the endorsed policy of Ministers or Governments.

ISBN 0 642 23662 3
Produced by J S McMillan Printing Group
Publication No. 5874.CTKE 97A

This discussion paper is provided as a basis for consultation with people with a disability, interested community groups and stakeholders in all sectors of education. The purpose of this discussion paper is to raise issues for consideration and community debate.

Work commenced early in 1996 looking at whether or not there should be disability standards in education. In recent years, Australians have become more aware of the rights of people with a disability and the need for systematic approaches to ensuring equity in important areas such as education, employment, transport and access to buildings. Disability Discrimination Act (DDA) Education Standards are one possible approach which could clarify current obligations. As yet, no decision has been made either way on whether or not to have DDA Education Standards but views are being sought from the community including education and training providers, those working in education and training and students with a disability and their families.

Most States and Territories have anti-discrimination legislation for people with a disability. The Commonwealth Disability Discrimination Act (1992) provides a process for complaints to be conciliated or resolved more formally by a hearing and includes a provision for the Commonwealth Attorney-General to make disability standards in some areas, including education.

Education is a very broad area. Education providers include schools, both public and private, all vocational education and training providers such as TAFE and private businesses offering courses, universities and a range of adult and community education bodies.

There is no single person or institution which is responsible for all education and training in Australia. The number of individuals and groups who have an interest in looking at whether to have DDA Education Standards is very large and it has not been easy to settle on a process which would include all stakeholders. There are many issues and the following information and material is to facilitate consultation.

This discussion paper includes

• information about;

• -who is involved in exploring the feasibility and desirability of DDA Education Standards;
  -what progress has been made;
  -the consultation process;

• information about the Disability Discrimination Act;

• -objectives
  -key concepts;

• a look at what DDA standards are;
• what is being done in other areas where DDA standards are being considered;
• information about possible benefits and costs; and
• a discussion of how education and training services link with other services including health and early intervention services; and
• how to make your views known and a list of critical questions.

Who is looking at DDA Education Standards?

The Ministerial Council on Education, Employment, Training and Youth Affairs includes all Commonwealth, State and Territory Ministers responsible for education and training. This Council, which is called MCEETYA, meets regularly and agreed to take a major role in the DDA Education Standards process. At the end of 1995, MCEETYA established a Taskforce to work on DDA Education Standards.

There is a strong commitment to ensuring equity in the provision of education services to students with a disability. The Commonwealth Attorney-General has the responsibility for making DDA Education Standards. In doing so he is responsible for listening to all views so that, if he decides to make DDA Education Standards in the future, these will reflect a high level of agreement.

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The MCEETYA Taskforce on DDA Education Standards

The Taskforce met for the first time early in 1996. The Ministers in setting up the Taskforce were anxious to make sure that as many stakeholders as possible were represented. They also had to consider the overall size of a group which was being asked to do a very complex task and the need to have a balance between the different sectors of education.

The Commonwealth agreed to chair the Taskforce and the Deputy Secretary of the Department of Employment, Education, Training and Youth Affairs, Mr Alan Ruby is the Chair. The Taskforce has 25 members. Each State/Territory Minister was asked to nominate two representatives. In addition the DDA Standards Project was asked to nominate two members. A member also comes from each of the following groups;

• Australian Vice Chancellors' Committee
• National Catholic Education Council
• Australian National Training Authority
• National Council of Independent Schools Association
• Australian Council for Private Education and Training

The Taskforce has liaised with the Disability Discrimination Commissioner, Ms Elizabeth Hastings, and her staff. The DDA Standards Project has provided disability representatives for working groups established by the Taskforce. A list of the members of the Taskforce is at Appendix A.

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What is the DDA Standards Project?

The DDA Standards Project is a network of national peak disability organisations. There is no formal membership, there are no affiliation fees and there is no constitutional or incorporation base. The Commonwealth Attorney-General's Department provides funding for meetings of the Steering Committee and for a one person secretariat to support the disability sector across the DDA standards processes.

The DDA Standards Project was formed in June 1995 as a community-based organisation which coordinates the disability sector input into the consideration of all DDA standards. The project was formerly the National Coalition for the Development of DDA Standards.

The DDA Standards Project Steering Committee includes the following the national disability peak organisations:

There are 20 representatives from the disability sector involved across the four DDA standards development areas - transport, employment, Commonwealth government information and communication and education. Project representatives are also currently involved in the review of the Building Code of Australia. The DDA Standards Project, through the Steering Committee, works to include the views of the disability community in all areas. You can contact them through the Coordinator, Rose Ross at

DDA Standards Project
PO Box 192
ERINDALE CENTRE ACT 2903.

Phone: 06 - 296 3012
Fax: 06 - 296 3090.

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What is the process for considering DDA Education Standards?

The Commonwealth Attorney-General has asked MCEETYA to help with the process by looking at whether DDA Education Standards are feasible and desirable and, if so, draft DDA Education Standards. In the longer term, the Disability Discrimination Act sets out how the Attorney-General formulates disability standards.

At this stage, the work is with the Taskforce which has canvassed the issues and reported twice to Ministers. In September 1996, following its first report to Ministers, the Taskforce distributed a progress report to national peak organisations. The Taskforce has now issued this discussion paper. Representatives on the Taskforce will consult within their areas and with their members as well as with stakeholders not represented on the Taskforce such as education unions, student organisations and interested individuals.

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What is the Disability Discrimination Act?

The Disability Discrimination Act (DDA) was passed by Parliament in 1992 and took effect from 1 March 1993. The objects of the DDA, as set out in S3. of the Act, are:

The Act contains a number of strategies to achieve these objectives. Discrimination on the grounds of disability is made unlawful. The Act provides for a complaints mechanism to address individual acts of discrimination and also for the development of standards to address systemic discrimination. The DDA has a very broad definition of disability and this will be used in considering DDA Education Standards. It is possible to use a different definition for standards as long as it is consistent with the DDA. For example, in draft DDA transport standards, some specific standards are for people who use a wheelchair.

The DDA establishes the position of Disability Discrimination Commissioner within the Human Rights and Equal Opportunity Commission (HREOC). It also provides for community education and development and a voluntary provision for organisations to prepare and implement Action Plans in relation to the Act.

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What are disability standards and what can they do?

Section 31 of the DDA says that the Commonwealth Attorney-General may formulate standards under the DDA in a number of areas including education. Standards offer a more systematic approach to achieving the objectives of the DDA than the individual complaints process which is costly, timely and uncertain. It would be unlawful to contravene a standard and compliance would be a defence against a complaint of unlawful discrimination.

There is no prescribed form that standards must take. Disability Standards could be technical or descriptive, detailed or general, flexible or prescriptive.

Disability Standards have the potential to make rights and obligations under the DDA clearer and easier to understand, comply with and enforce. Standards could do this by:

• setting out in more detail how the DDA applies to particular issues;
• giving more detailed definition to concepts that the DDA does not define or only defines in general terms, eg. reasonable accommodation and unjustifiable hardship; and
• setting out more detailed principles to guide key decisions under the DDA.

The DDA recognises that people with a disability might require different accommodation or services and this is often referred to as reasonable accommodation or reasonable adjustment. The DDA does not require action which would impose unjustifiable hardship on the education provider taking into account the impact on all concerned, the effect of the disability, financial circumstances and the cost.

There are several areas in which further detail would assist all parties in understanding the operation of the DDA. For example, Sections 37 and 38 of the DDA deal with harassment in education but harassment is not defined. DDA Education Standards could clarify this.

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Are there DDA Standards in other areas?

There are no DDA Standards which have been approved by the Commonwealth Parliament. This means that it is difficult to see what such disability standards might look like. However, other groups are working on disability standards and there are some draft standards and other material which can give people an idea of the what to expect. There have also been national consultation processes involving lots of groups and people with a disability.

In the transport area, the Australian Transport Council which includes Commonwealth, State and Territory Ministers, looked at the feasibility of disability standards. The draft DDA Transport Standards take a very detailed technical approach. They are currently the subject of a Regulatory Impact Statement, a draft of which is expected to be available shortly. Copies of the draft standards can be obtained from:

In the employment area the work has not been done through Commonwealth and State Ministers but more directly by the Human Rights and Equal Opportunity Commission with a group which includes employers and trade unions. The Disability Discrimination Commissioner prepared draft DDA Employment Standards following a consultation process based on an earlier issues paper. A new draft of the DDA Employment Standards is currently being prepared following the outcomes of extensive consultations. Information on DDA Employment Standards is available from:

Disability Discrimination Commissioner
GPO Box 5218
SYDNEY NSW 2001

Phone: 1800-021-199 (toll free) or 02 9284 9761
Fax: 02 9284 9789
TTY: 180-620-241

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Are DDA Education Standards feasible and/or desirable?

Education is very important for all Australians and it is not surprising that people with a disability and education and training providers give a high priority to equal access to and participation in all education sectors. Education and training arrangements are very complex and particular to the specific course and provider. The needs of students with a disability are often very individual and relate to their own needs and aspirations. This can lead to a situation where institutions wishing to comply with their legislative responsibilities experience difficulties in interpreting core concepts in the DDA and hence in determining exactly what is required of them. A systematic approach such as DDA Education Standards may not be able to deal with this diversity.

In the context of an increasing number of complaints under the DDA and similar State/Territory legislation, education providers, people with a disability and the community are exploring ways of taking a clearer and more practical approach to achieving the objectives of the DDA. DDA Education Standards could provide a more timely and organised alternative than the random nature of clarification offered by decisions in individual cases.

The process of developing and implementing DDA Education Standards has to accommodate three distinct interests:

• students with a disability, their families and the disability community who are seeking to improve educational opportunities and outcomes;
• education and training providers who have responsibilities to students and the broader community to provide quality education within budget parameters and who are seeking improved certainty and clarity in what is expected of them under the DDA; and
• anti-discrimination bodies such as State equal opportunity commissions and the Federal Human Rights and Equal Opportunity Commission which have a statutory responsibility to remove disability discrimination and conciliate complaints of disability discrimination.

These interests clearly share equity goals and much has been achieved in the provision of education to people with a disability in the past decade. There may be tensions, however, between the expectations of consumers and the ability of education providers to meet these expectations, given available funds and competing demands.

Arguments for and against the making of DDA Education Standards, will vary depending on whether you see things from the viewpoint of a student with a disability, an education provider or any one of a number of other viewpoints. Some general arguments for and against the making of DDA Education Standards are outlined below as a starting point for discussion.

Arguments for

The adoption of DDA Education Standards could simplify the current open ended obligations faced by education providers and make possible:

• a level of certainty for students or families in the transition between sectors or moving from one provider to another, especially enrolment changes following relocation interstate,
• greater consistency in the level of disability services across education institutions and providers,
• a reduction in the costs and effort associated with conciliation and formal hearings of complaints for both education providers and people with a disability,
• where a DDA standard covers the reason for a complaint and the education provider demonstrates compliance with the standard this would constitute a complete defence,
• systemic changes to improve education for people with a disability rather than ad hoc responses to conciliated complaints and decisions from hearings,
• clarity and certainty for policy and strategic planning and a phased introduction of change which will allow planned implementation which assists providers to gradually incorporate any costs into financial arrangements,
• clarity and information about expectations from potential students with a disability and their parents and carers,
• greater consistency between providers as all institutions will be judged by the same standards. Currently those providers offering special resources, support services and programmes to enhance educational opportunities for people with a disability have more demand on their resources, and
• improvement in articulation between education sectors and into employment for students with a disability.

Arguments against

The adoption of DDA Education Standards has the potential to:

• limit the rights currently provided by the DDA for some individuals with a disability;
• require more widespread change than is generated by current complaint arrangements as most grievances do not lead to formal DDA complaints, not all formal complaints are accepted and few of these lead to determinations (ie. precedents);
• build-in higher costs for all students. Higher delivery costs could lead to cross subsidisation amongst students in terms of fees where these apply, especially for small providers;
• have an increased cost on small providers in all sectors;
• have a major negative impact on the elements of the vocational education and training and adult and community education sectors which do not receive government funding;
• be a very time consuming and resource intensive process; and
• lead to the adoption of the lowest common denominator rather than best practice.

In balance

If DDA Education Standards were developed, there would be

• education provision for people with a disability in accordance with formal standards developed co-operatively by education providers, people with a disability, their parents, carers and advocates,
• more consistency of educational opportunities and programmes for people with a disability across sectors and institutions,
• equal choice of education institutions and courses, as far as possible, for people with a disability as for other students,
• an environment in which providers could plan, fund and offer services in the knowledge that they are conforming with the DDA and in which students with a disability and their parents can plan with more certainty their education and training pathways, and
• less diversion of resources from services for people with a disability to costly complaint handling.

The DDA Education Standards process could be seen as a means of reaching a national agreement on the removal of major barriers to educational participation by people with a disability; in effect a national conciliation process.

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What about potential benefits and costs?

In considering benefits and costs, it is important to go back to the objectives of the DDA which include the elimination as far as possible of discrimination against persons on the grounds of disability. The DDA has a focus on equality of access to existing education and training.

There are significant difficulties in preparing a detailed analysis of the potential benefits and costs of DDA Education Standards at this early stage because of the differences between State and Territory systems and non-system providers, both public and private, in the nature and level of support provided and their capacity to meet the needs of students with disabilities.

The obligations of education and training providers under the DDA (and similar State legislation) are somewhat open-ended. This uncertainty may mean that there could be existing gaps between provision of disability support for students and the DDA obligations. For some providers, standards could identify such gaps and allow them to take action.

Another source of additional costs might flow from increased demand if more students with a disability take up education and training opportunities. Costs will vary depending on the number of students and the level of their support needs. As the numbers of people with disabilities in a system grow, the costs for systems and large institutions are likely to increase, offset by some "economies of scale". These economies of scale would not be available to small providers. It might be useful to explore ways in which providers, especially independent institutions or small systems, can enhance economies of scale while still offering choice and quality. Staged implementation of any standards similar to the timetable in the draft DDA transport standards will need to be considered.

Benefits and costs need to be examined as broadly as possible and it is important to identify other indirect or qualitative benefits and costs.

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How do education and training services link with other areas?

In areas such as employment and transport which have a major impact on education providers, there are already processes to examine DDA standards. For access to premises, the work is being done through the Australian Building Code Board. The Board has distributed a discussion paper on access to premises. This has taken a very technical approach as it is bringing together the Disability Discrimination Act obligations and the existing building code requirements.

In catering for the needs of students with severe multiple disabilities, students with health care needs and students with extreme social and behavioural difficulties, The involvement of other agencies is an essential requirement if the needs of these students and barriers to their access, participation and attainment in schooling are to be adequately addressed.

Intersectional issues will need to be considered and these might include:

• the responsibility of education providers and that of other agencies such as health providers in the provision of services to enable students with a disability to access and participate in education and training;
• the provision of early intervention services; and
• responsibilities for other services must be recognised, although service agreements or other such mechanisms for cooperation should be explored eg. health sector responsibility for delivery of health services.

A strategic, whole of government approach is necessary. This may not be achievable by DDA Education Standards alone.

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What are some of the issues for comment?

This discussion paper provides the framework for commenting on the feasibility and desirability of DDA Education Standards. While you are invited to raise any issue related to DDA Education Standards, the Taskforce has included this list of questions to start discussion:

1. The DDA defines an educational authority as "a body or person administering an educational institution" and defines educational institution as a school, college university or other institution at which education and training is provided". Do these definitions need to be explained further?
2. Should there be DDA Education Standards? If yes, why? If no, why?
3. In what areas or sectors of education could DDA Education Standards set down in more detail the rights and responsibilities of people with a disability and education providers?
4. What should be included in DDA Education Standards?
5. How will industry-based and workplace training be considered?
6. What would be the benefits or advantages of DDA Education Standards?
7. What would be the disadvantages of DDA Education Standards? What kind of provisions in DDA Education Standards would be likely to increase costs?
8. Are there other approaches such as improved promotion of the DDA, professional training and development for teaching and other staff, guidelines or increases in funding for particular services already in operation which could achieve the objectives of the DDA?
9. If there are DDA Education Standards, what should be the time frame for implementation?
10. Where there are links between educational services and other agencies in providing support and services to enable students with a disability to access and participate in education and training, how can DDA Education Standards clarify the role of non-educational service providers?
11. How, if DDA Education Standards are developed, will information about the DDA Education Standards be communicated to service providers, especially small ones, teachers, lecturers, students and their families and care givers and industry providers?

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How can you make your views known to the Taskforce?

Comments on this discussion paper, especially your views on the above questions, should reach the Taskforce before 22 October 1997.

It is expected that national bodies, State and Territory agencies, educational institutions and other groups will make submissions and, if you are involved in one of these, you might find it easier to put your views that way. The DDA Standards Project will be coordinating disability sector responses. They can be contacted through Ms Rose Ross at:

Comments on this paper should be addressed to:

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Appendix A

Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA)

Disability Discrimination Act (DDA) Education Standards Taskforce

Members

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