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Consideration of the Desirability and Feasibility of Disability Discrimination Act Standards in EducationQUESTIONS and ANSWERS1. What is the Disability Discrimination Act? 2. Why look at DDA Education Standards? 4. How do DDA standards differ from standards under the Disability Services Act? 5. What aspects of the Disability Discrimination Act might be made clearer by standards? 6. Are there any overseas models for education standards? 7. In what other areas are standards being considered? 8. What educational and training sectors would be covered by the standard? 11. How will standards be enforced? 12. Who can make standards under the Disability Discrimination Act? 14. Who represents the interests of people with disabilities on the MCEETYA Taskforce? 15. What might be the timeline for developing standards? 1. What is the Disability Discrimination Act? The conceptual framework provides the Disability Discrimination Act (DDA) was passed by the Commonwealth Parliament in 1992 and took effect from 1 March 1993. The objectives of the DDA are, as far as possible, to eliminate discrimination against people on the grounds of disability, to ensure that people with disabilities have the same rights before the law as the rest of the community; and to promote the principle that people with disabilities have the same rights as the rest of the community. The DDA established the position of Disability Discrimination Commissioner within the Human Rights and Equal Opportunity Commission (HREOC). People who believe that they have been discriminated against can complain to HREOC who will investigate their complaint and can arrange conciliation or redress if discrimination has occurred. The DDA is a Commonwealth Act, but most States and Territories have similar legislation. In most cases, people who wish to complain about discrimination can choose to complain under either the Commonwealth or the State/Territory legislation. Return to top 2. Why look at DDA Education Standards? The main enforcement process in the DDA is based on the making of a complaint. A person who considers that he or she has experienced disability discrimination can make a complaint. The complaint will be resolved through investigation, conciliation and, if necessary a formal hearing. The DDA also includes provision for the making of standards in areas such as education, where this could provide a more systemic way of addressing possible disability discrimination. Return to top The DDA has a very broad definition of disability that covers a wide range of disabilities, imputed disabilities and possible future disability. The DDA also covers carers or associates of people with disabilities who may suffer discrimination as a result of their caring role or association with a person who has a disability. This definition will be used in considering DDA Education Standards. It is possible to use a specialised definition for standards provided it is consistent with the DDA. For example, in draft DDA transport standards, some specific standards are for people who use a wheelchair. Return to top 4. How do DDA standards differ from standards under the Disability Services Act? The Disability Services Act (1986) is administered by the Commonwealth Department of Health and Family Services. Under this Act, standards are set for organisations which are funded under this legislation to provide employment services to people with disabilities. They cover the quality of service delivery in these programmes for people with a disability. There are also disability services standards for some State disability programmes. Standards under the DDA can go beyond specialist disability services. These standards are more like regulations further defining the rights and obligations in the DDA and are legally binding on individuals and organisations. Return to top 5. What aspects of the Disability Discrimination Act might be made clearer by standards? Standards under the DDA have the potential to make people’s rights and obligations under the DDA easier to understand. They could also make the DDA easier to comply with and to enforce. There are a number of concepts within the DDA, such as unjustifiable hardship, reasonable accommodation, harassment and special measures which could be defined in more detail by standards. Return to top 6. Are there any overseas models for education standards? Australia has a range of public and private education providers, a federal system in which State governments have a major role and complaint based human rights legislation in education and training. Useful models are most likely to come from the USA, Canada, the United Kingdom or New Zealand. Each of these countries have legislation dealing with disability discrimination in education, however, some legislation is more comprehensive. The legislation in the United States is the most extensive in its coverage and is also the oldest. None of these countries have adopted the approach proposed in Australia of standards made under legislative provision. However, the Codes of Practice under the UK legislation serve a similar function that, of assisting providers by identifying the kinds of changes they need to make for students with a disability. Generally, these countries use education legislation or individual education planning processes rather than human rights legislation to try to prevent discrimination against people with disabilities. Return to top 7. In what other areas are standards being considered? Consultative groups are working on draft disability standards in transport, employment, access to premises and Commonwealth information and communication. The draft DDA Transport Standards are currently the subject of a Regulatory Impact Statement looking at what the impact of standards might be in terms of the overall cost and benefit which might flow from implementation of the standards. A draft is expected to be available shortly from the Attorney-General’s Department. In the employment area, the Disability Discrimination Commissioner is preparing draft DDA Employment Standards in the light of extensive consultations with employers and people with disabilities. Standards for Commonwealth information and communication are still at a very early stage of consideration. Access to premises is being considered as part of a review of the Building Code of Australia. DDA standards may be considered at a later date. Further information on these processes including how to obtain copies of related documents is set out on page 5 of the Discussion Paper, Disability Discrimination Act Disability Standards in Education - July 1997. (Details of how to obtain copies of this Discussion Paper are set out at the end of this document.) Return to top 8. What educational and training sectors would be covered by the standard? The DDA applies to all education sectors including, in the case of the schools sector, both private and State schools. There is potential for the standards to cover each of these sectors, although the application of standards to pre-school and early intervention is still under consideration. Return to top 9. Can standards increase or decrease the legal rights and obligations that currently exist under the Disability Discrimination Act? DDA Standards are designed to make clearer the current obligations under the DDA. DDA standards cannot change the Act itself. Return to top 10. What can standards offer that cannot be achieved through other mechanisms, eg. policies, guidelines or advisory notes? Policies, guidelines and advisory notes are not enforceable. Standards under Section 31 of the DDA have the power of law, and are thus binding on parties to whom they apply. (How this occurs is described in Question 11, below.) While policies, guidelines or advisory notes can offer guidance and a framework for the conciliation of a complaint, they are not legally enforceable beyond the current provisions of the DDA, whereas standards are. Return to top 11. How will standards be enforced? The Human Rights and Equal Opportunity Commission (HREOC) has responsibility for the administration of the DDA. Complaints about discrimination on the grounds of disability can be made to HREOC. Equally, where a person is alleged to have failed to comply with a standard under the DDA, a complaint may be lodged with HREOC. The standards will be taken into consideration by HREOC in considering complaints made under the DDA. Return to top 12. Who can make standards under the Disability Discrimination Act? The Commonwealth Attorney-General can make standards under the DDA. The Government intends that the views of education and training providers and people with a disability should be taken fully into account in framing any draft DDA Education Standards. The DDA sets out a process for draft standards to be tabled in the Commonwealth Parliament. Either House can disallow the standards if they do not approve of them. Return to top 13. What processes have been adopted for considering education standards under the Disability Discrimination Act? In December 1995 the Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) set up a Taskforce to consider whether education standards under the DDA could be developed, and whether such standards would have public support. The Taskforce includes representatives of State government and non-government school sectors, vocational and higher education sectors and private training providers plus representatives of people with disabilities. It has 23 members. More information about the membership of the Taskforce is set out in the Discussion Paper that has recently been issued by the Taskforce. ** (Details of how to obtain copies of the Discussion Paper are set out at the end of this document.) Return to top 14. Who represents the interests of people with disabilities on the MCEETYA Taskforce? People with disabilities are represented through the DDA Standards Project. The DDA Standards Project is a network of national peak disability organisations which has no formal membership, no affiliation fees and no constitutional or incorporation base. The Commonwealth Attorney-General’s Department provides funding for meetings of the Steering Committee of the Project and for a secretariat to support the disability sector across all the DDA standards processes. The secretariat can be contacted on Phone 06-296 3012 or Fax 06-296 3090. Return to top 15. What might be the timeline for developing standards? The Discussion Paper lists the questions that the Taskforce is keen to address. Submissions are sought by 22 October 1997 and the consultation process will be completed as early as possible in November 1997. The Taskforce would expect to report to MCEETYA by the end of the year. Consultations will include disability groups, students with disabilities, parent groups, and education providers in all education sectors. The Taskforce welcomes comments from as many viewpoints as possible. More details about the process for considering DDA Education Standards and the process for consulting interested parties are set out in the Discussion Paper. CONTACT FOR DISCUSSION PAPER ON DDA EDUCATION STANDARDS ** Copies of the Discussion Paper can be obtained from:
Copies in alternative formats are available by contacting:
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