1. What is the DDA?
2. The DDA seems to set out
the obligations on education providers and others fairly clearly, so why
have standards at all?
3. Why don’t we just amend the
DDA?
4. How do the
draft disability Standards for education provide clarity?
5. Are there other disability
standards besides those for education?
6. Will the Standards become part of
the law? How?
7.
What action can be taken if it appears that an education provider is not
complying with disability Standards?
8. As an education provider,
how many of the measures will I need to comply with to show that I am
acting in accordance with the Standards?
9. Once implemented, will the
Standards apply to all students with disabilities and to all education
and training providers?
10. Are there other ways
besides Standards to achieve the aims of the DDA?
1. What is the DDA?
The Commonwealth Disability Discrimination Act 1992 (DDA)
provides people with protection against discrimination, or unfair
treatment, that is based on disability.
The DDA has three key aims. These are to:
- eliminate, as far as possible, discrimination against people on
the ground of disability in specified areas, including education and
training;
- ensure, as far as practicable, that people with disabilities have
the same rights to equality before the law as the rest of the
community; and
- promote community recognition and understanding of the principle
that people with disabilities have the same fundamental rights as the
rest of the community.
The DDA sets out to achieve these aims by making it unlawful to
discriminate against a person with a disability. It is also
unlawful to harass or victimise a person because of that person's
disability.
The DDA applies to the actions of Commonwealth, State, Territory and
local governments, private industry, incorporated and unincorporated
associations, and to private citizens.
2. The DDA seems to set out the obligations on
education providers and others fairly clearly, so why have standards at
all?
The aims and spirit of the DDA are clear enough. However,
these are general statements of principle and provide little clarity or
detail on what is required of education providers for compliance with
the Act.
The DDA permits the development of disability Standards in a number
of the areas it covers (employment, education, access to premises,
public transport, accommodation and the administration of Commonwealth
laws and programs in respect of persons with disabilities). Disability
Standards are one way of assisting individuals and institutions to
understand the aims of the DDA, and what is required to comply with the
Act and avoid discriminatory behaviour.
Various disability Standards, including Education Standards, are
being developed to provide greater clarity and certainty about rights
and obligations under the DDA.
3. Why don’t we just amend the DDA?
The DDA is the principal or enabling legislation, written in
broad and general terms. Standards, which are a form of delegated
or subordinate legislation, provide greater flexibility and the
opportunity to incorporate clarifying detail targeted, in this instance,
specifically at education and training.
4. How do the draft disability Standards for
education provide clarity?
The draft Standards set out the rights of students (and
prospective students) with disabilities, and the legal obligations of
education providers, in a number of areas relevant to education and
training (enrolment, participation, curriculum development,
accreditation and delivery, student support services and elimination of
harassment and victimisation). The draft Standards assist
education providers by giving examples of the kinds of compliant
actions, or measures, that would enable them to meet their legal
obligations.
5. Are there other disability standards besides
those for education?
While no disability standards have yet been agreed to, the DDA
does allow disability standards to be formulated in a number of
areas. As well as education, standards may be formulated for
accommodation, employment, public transport, access to premises and the
administration of Commonwealth laws and programs.
Work has been progressing on disability Standards in the areas of
public transport and access to premises.
6. Will the Standards become part of the law?
How?
Yes. Disability Standards take effect, that is, become law,
once they are approved by the Commonwealth Parliament. Disability
Standards effectively replace the operation of relevant provisions of
the DDA in relation to the aspects of education and training that they
cover. It is unlawful to contravene a disability Standard.
Failure to comply with a Standard may provide the basis for a complaint
alleging either a breach of the Standard or a breach of a relevant
general provision of the DDA. However, compliance with a
disability Standard is a defence to a complaint alleging a breach of the
relevant general provisions of the DDA.
7. What action can be taken if it appears that an
education provider is not complying with disability
Standards?
If a student (or prospective student) with a disability believes
that an education provider is not complying with disability Standards,
he or she may lodge a complaint with HREOC. The complaint may be
made in terms of a breach of the Standards, or a breach of relevant
general provisions of the DDA. HREOC will attempt to conciliate
the complaint. If conciliation is unsuccessful or inappropriate,
the matter may be pursued in the Federal Court or in the Federal
Magistrates Service. Reduced fees and special rules, designed to
reduce formality and the need for representation by a lawyer, apply to
these proceedings.
The complaints process for a breach of disability Standards is the
same as that for complaints alleging a breach of the general provisions
of the DDA.
8. As an education provider, how many of the
measures will I need to comply with to show that I am acting in
accordance with the Standards?
The measures which accompany each statement of obligation in the
Standards are only examples of the kinds of action that a provider might
take to ensure compliance with its legal obligations. Generally,
compliance with some or all of the measures would provide a defence
against a complaint. However, the specific measures listed may not
be sufficient to achieve full compliance in a particular case.
There is nothing in the Standards that would prevent or limit education
providers from developing other measures.
The over-riding principle is that education providers take the sorts
of measures designed to provide students with disabilities with access
to education and training on a non-discriminatory basis. However,
this does not mean that an education provider must take action which
would amount to unjustifiable hardship. Resolution of a complaint
would depend on the circumstances of the particular case in
question. This is already the case for complaints of unlawful
discrimination under the general provisions of the DDA.
9. Once implemented, will the Standards apply to
all students with disabilities and to all education and training
providers?
Yes. The Standards will apply to all students with
disabilities. For such students, the important considerations are:
· whether he or she is a student (or prospective student) at a
school or other education and training institution; and
·
whether he or she has a disability.
The Standards will also apply to all education and training providers
throughout Australia.
10. Are there other ways besides Standards to
achieve the aims of the DDA?
Yes. To achieve its aims the DDA contains six strategies:
· discrimination on the basis of disability is made unlawful;
·
conciliation and provision for independent investigation and
conciliation, or determination, of complaints about discrimination;
· development of disability Standards;
· development of Action
Plans
· community education and development; and
· review of
discriminatory laws.
However, the strategies are not without limitations. For
example, the complaints mechanism, while necessary, has various
limitations such as delays, uncertainty and ‘burn out’ by complainants
because of the demands and the stress of the process.
In a consultation process undertaken in 1997, to determine the
desirability and feasibility of disability standards for education, most
respondents expressed strong support for standards as a means of
achieving clarity for both students and providers and wished to be
consulted on the standards, once drafted.
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