The right to belong - disability discrimination law in education
| Speech by Elizabeth Hastings, Disability Discrimination Commissioner 1993-97 Sydney, July 1997 |
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Belonging
I have called this paper "the right to belong", and it is with this idea that I wish to begin my address to you this afternoon, before discussing in more detail the current state of the law in relation to disability discrimination.
The most frequent word used by policy makers when considering the education of people with disabilities is inclusion. The word is also now being used by the churches, which have just discovered disability discrimination. It is a word with which I have a very ambivalent relationship.
On the positive side, the exercising of policy minds with the concept of inclusion does result in more access for and participation by people with disabilities. About the desirability of this I have no doubt, and the imagination, flexibility and determination that has gone into the design of inclusive curriculum must be acknowledged and applauded.
However, the very word "inclusion" places the onus to decide whether or not to include on those who do not have the disability. That is, those of us who do have a disability will be included by the grace of those who are making the decisions, not by our right as human beings, as members of the common weal. We are still in some sense a supplicant group, depending upon the good will of others for our involvement, our welcome, our belonging. We are still in receipt of the favour, the benison, the conditionality of the experience.
You may think this is simply playing with words, however as a person with a disability who has given serious consideration to these matters for over 30 years, I can assure you that the Word is of paramount importance. These days we talk about something being "only" a symbol, as though a symbol is nothing much, "just words". This interpretation has been most evident recently in the discussion of whether or not to make an apology on behalf of the nation to our indigenous people for certain government policies of the past. It is clear from the arguments and requests of indigenous people that an apology is not "only" a symbol, but is a concrete event which would be concretely felt both in the community and in each person.
Similarly, in the area of disability, words are concretely experienced in the body, in the mind, in the soul. This is why self-definition has always been so important to the disability rights movement; this is why labels such as "mentally retarded", "crippled", "lunatic" and "deaf and dumb" are no longer used, and why at last even journalists are beginning to get a grip on the phrase "person with a disability" and may, on occasion, overcome the temptation to describe a person as "suffering".
Perhaps I could best demonstrate the significance of language by looking briefly at the Convention on the Rights of the Child, usually affectionately referred to as CROC. This Convention was adopted by the United Nations General Assembly on 20 November 1989 and entered into force on 2 September 1990. In the third paragraph of the preamble there is the phrase "everyone is entitled to all the rights and freedoms set forth [in the Universal Declaration of Human Rights]", followed by a list of distinctions which are not to be considered, as though the word "everyone" has no meaning. Later, in Article 1, "a child" is defined as "every human being below the age of eighteen years", yet Article 2 goes on again with a series of disallowed distinctions, this time mentioning disability among others. Again, it appears that the phrase "every human being" has no real meaning. Later in the Convention, after 22 articles referring to "the child", meaning "all children", there is article 23 on "handicapped children", stating that they too should enjoy a full and decent life, just in case that was not assumed from the previous 22 statements - which no doubt it was not.
Is this not an extraordinary phenomenon? It would leave me speechless were I not committed to speak to you for at least another half an hour. It suggests that "every human being" can be interpreted to mean "some human beings", and to exclude some other human beings unless they are fortunate enough to have been specifically described in these qualifying phrases. Or perhaps it means that if one is different in some respect from whoever wrote or administers the Convention, one is not actually a human being: the list of disallowed statuses somehow confers a type of honorary human being-ness on an otherwise non-human.
This is the, as it were, deep knowledge of people with disabilities: "every human being" does not mean me unless I am specifically pointed out as also included. It is this that leaves me in some discomfort with the word inclusion, a word which suggests I do not belong until you say I do.
It is the experience of people with disabilities that we have been actively excluded from participation in ordinary living: excluded by flights of stairs, unsuitable information formats, unyielding rules, inaccessible facilities and hurtful attitudes. It would be more correct for policy makers to plan to stop excluding rather than to start including, to acknowledge our right to belong rather than to treat us as optional extras in our community.
You may have noticed that I am using the first person in relation to people with disabilities: I am saying "we" and "our" instead of "them" and "their". There is always an awkwardness for me in how to align myself when speaking as the Commissioner: if I say "we" and "our", potential respondents may think I am biased; if I say "them" and "their" I am alienated. I have decided on this occasion to acknowledge that I am of the "optional extra" class. I hope it will become evident that belonging to a particular group does not preclude me from the capacity for impartial and disinterested consideration of the issues as required by my appointment.
A decision to belong (Bradley Kinsela v QUT)
The DDA has been used in a way which illustrates very clearly what I have been saying. In February 1996 Mr.Bradley Kinsela wrote to the Commission alleging that he had been treated unfavourably by the Queensland University of Technology ("the University") because of his disability. The complaint was in relation to his graduation ceremony. Mr. Kinsela alleged he would be unable to graduate alongside his fellow students because of difficulties with access at the venue chosen for the ceremony. The complaint could not be resolved by conciliation, and I referred it to the Commission for formal hearing pursuant to section 76 of the Act.
Mr. Kinsela uses a manual wheelchair for mobility. For the previous 3 years he had been studying full-time for a Bachelor of Science (Human Services) degree, a course to which he was attracted after the accident that caused his disability and made him rethink his aims in life. The course philosophy is that all people (there it is again!) should enjoy fundamental civil, political, economic, social and cultural rights. As early as September 1994 one of Mr. Kinsela's lecturers sent a memorandum to the relevant Pro-Vice-Chancellor, drawing attention to the experience of another student who used a wheelchair for mobility and who was segregated from fellow students during their graduation ceremony, and alerting organisers to the need to ensure that the University observed modern disability practice (not to mention the law!) by finding a way to allow students with such mobility impairments to be an ordinary part of the experience offered to other students. However, nothing adequate was done to accommodate Mr. Kinsela.
The Hearing Commissioner found the complaint substantiated and made a declaration that the university provide or arrange for the provision of facilities, including choice of venue for the graduation ceremony, that would enable the complainant to participate in that ceremony alongside his fellow students, and in the same way as they would be participating.
Clearly, Mr. Kinsela wanted to belong, and be seen to belong, to the ordinary category of graduand, and not be obliged to accept different treatment which would have singled him out as a different kind of student. Where the protocol manual dictated what all students would do at any point in the ceremony, Mr. Kinsela wished to be automatically included in, to belong in, the category "all students", just as I have pointed out the wish of people with disabilities to belong automatically in the category "every human being".
A law to belong: the Disability Discrimination Act
In Australia the right to belong is recognised in State and Federal anti-discrimination law. Our national commitment to human rights, formalised by the signing of various international instruments, requires that people who have a disability be recognised as full citizens and that our rights to equal participation in the life of the community be assured, along with all Australians. It is implemented by means of domestic laws, both commonwealth and state, which specify in what areas people's rights are to be protected, and on what grounds it is unlawful to discriminate against us. The word "inclusion" does not appear, but it may be unlawful to exclude.
As the Disability Discrimination Commissioner, I am a member of the Human Rights and Equal Opportunity Commission. I perform various functions for the Commission under the Disability Discrimination Act. The major objectives of this legislation are to eliminate, as far as possible, discrimination against people on the ground of disability; to 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 to promote community acceptance of the principle that people with disabilities have the same fundamental rights as all members of the community.
Disability is broadly defined in the legislation to include physical, intellectual, sensory, neurological and psychiatric disabilities as well as certain conditions or potential conditions which may have a disabling effect. Discrimination is unlawful in education, employment, public transportation, sport, clubs and associations, accommodation, finance and banking, insurance and superannuation, access to premises and to goods, services and facilities, and in Commonwealth laws and programs. Harassment on the basis of disability is unlawful in employment, education and the provision of goods and services.
It is an error frequently repeated that anti-discrimination and equal opportunity legislation confers some special or extra rights over and above those enjoyed by the community in general. This is not so: such legislation simply ensures and protects the enjoyment of ordinary rights and ordinary responsibilities. Nothing is added except a guarantee of that equal access, expected and assumed by most but still denied to many, to the social, educational, commercial, political and cultural life of the community of which we are all members. It has been necessary legislatively to establish this guarantee for certain groups of people because the community at large does not honour it in the ordinary conduct of its affairs.
Since 1981 every State except Tasmania has enacted anti-discrimination legislation, including on the grounds of disability, and including in the area of education. The DDA does not make demands other than those already made in anti-discrimination legislation. It does provide uniform protection of internationally recognised rights. Section 12 of the DDA sets out the constitutional basis for its powers and jurisdiction, including s12(8) which states that the relevant provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions relate to matters external to Australia or relate to matters of international concern. The Convention on the Rights of the Child, which was ratified by Australia in December 1990 and which is implied in these provisions, specifically mentions disability in its discrimination clause which applies to all the substantive rights recognised, education included, as well as there being a specific article on children with disabilities which emphasises integration and provision of appropriate supports. Laws of the States are not excluded or limited where they are capable of operating concurrently with the DDA: otherwise the Commonwealth law prevails.
Some of my functions under the Disability Discrimination Act are: the handling of complaints; education and promoting public awareness concerning disability issues; advice to Government and to the Parliament; encouragement and monitoring of compliance with the objects of the Act; and inquiry into laws and programs of government which appear to infringe human rights or which may be discriminatory. In this latter category I am currently conducting an examination into certain Medicare regulations relating to rebates for psychiatric treatment. The Commission may also grant exemptions from its legislation, and I advise on these in relation to the DDA; so far there have been three such applications, one from an education provider. There is also a capacity for the Commission to publish guidelines in relation to certain aspects of the law: the Commission has recently released guidelines on access to premises which will be relevant to those of you who are providers of education and who are managers of buildings, grounds and plant.
All the anti-discrimination laws administered by the Human Rights and Equal Opportunity Commission provide the opportunity for people who think they have been discriminated against on grounds covered by the legislation to make complaints and either have them resolved through conciliation, or proceed to a formal hearing if conciliation fails. Approximately 8-10% of DDA complaints relate to education: I will return to this aspect of my work later.
A standard for belonging
The Disability Discrimination Act includes provision for a process that is not common in other legislation, but is a very practical means of assisting in the implementation of the Act. I am referring to the provision in section 31 for the Attorney General to formulate Standards under the Act. These Standards may be made in the areas of public transport, employment, accommodation, education, and Commonwealth Government laws and programmes.
There are two main reasons for the inclusion of this provision. The first is to provide clearer delineation of what actually must be done to ensure access and equity than is provided for in the Act itself, in which the requirements for equal access for people with disabilities are only broadly stated. This type of open-ended legislation has its advantages, but is limited in its capacity effectively and consistently to achieve equality for people with disabilities. The second reason for the Standards-making provision is to set time scales in place under the law for achieving equal access for people with disabilities in the areas covered by the DDA; plainly, it is not feasible to bring in far-reaching mandatory requirements and expect the world to change from that point on. The existing built environment, for example, is not amenable to instantaneous transformation.
Disability Standards, then, will reduce some of the uncertainty arising out the broadness of the provisions, and, importantly, will reduce the burdens of time, staff resources, expense, uncertainty, and personal stress and anxiety involved for people in pursuing complaints under the Act and indeed for those pursued by such complaints.
Currently, there is a Task Force of the Ministerial Council on Education, Employment, Training and Youth Affairs established to draft Disability Standards in Education under the DDA. If agreement is reached, the draft will be circulated to specific interest groups for comment. When the comments have been considered and incorporated as appropriate, the draft Standards will be presented to the federal Attorney-General for approval and tabling in Parliament. It is unlawful to do an act that contravenes Disability Standards. Because of the complexity of the whole area, I am not expecting this process to be concluded in the very near future, however the sooner the better for all parties. I have been contributing the benefit of the Commission's experience in the development of other Standards, most relevantly a national accessible public transport Standard and a draft employment Standard under the DDA, and advising as to the requirements of the DDA.
The scope of education decided upon by the Task Force encompasses, as does the DDA, the whole range of lifelong learning, virtually from the cradle to the grave: it includes early intervention, pre-school and child care services, the compulsory schooling sector, adult vocational education and training, higher academic education, and adult recreational learning.
Extraordinarily complex though it is, the development of Disability Standards in education will set parameters for the elimination of discrimination and will allow providers and users to get on with the business of education.
Complaints, settlements and hearings
Let me now come to the specific provisions of the Act in relation to education, the issues that have arisen both through complaints and through my consultations in the sector, and the current state of the law.
Section 22 states it is unlawful for an educational authority to discriminate against a person on the ground of the person's disability or a disability of any of the person's associates by refusing or failing to accept the person's application for admission as a student; or in the terms or conditions on which it is prepared to admit the person as a student. Furthermore, it is unlawful to discriminate on the ground of disability by denying access, or limiting access, to any benefit provided by the educational authority; or by expelling the student; or by subjecting the student to any other detriment. It is not unlawful to refuse or fail to accept a person's application for admission as a student where the person, if admitted, would require services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.
You will notice that there is at present no provision for the lawful exclusion of a student once admitted to an educational institution. This lacuna in the legislation was highlighted in an application for an exemption from the Act, and I have written to the Attorney-General pointing it out. I think the Act requires amendment here to accommodate situations where the status of a student changes through the course of education, and to preclude the possibility of a student being refused admission in case later adjustments may prove too onerous, for example in the case of a child with a progressive disease.
The Commission has received a wide variety of complaints under section 22. These include matters relating to every level of education from pre-school to tertiary, and every type of disability. Where the matter concerns pre- or post-school provision of education there has been, on the whole, a willingness to arrive at a conciliated settlement. There has been less willingness for this from departments of school education and many of these matters have not, in the first instance, been conciliable. In those cases I have referred the complaint to the Commission for Hearing; in almost every case this has resulted in a confidential settlement immediately before or during the Hearing. Generally these have been an agreement by the department to allow the child to be enrolled at the school of the parents' choice.
This pattern of late settlement is noteworthy and indicates that some education authorities are keen to avoid setting precedents in this area. In my opinion this ad hoc solution of individual cases is not the best way to make decisions: the important issues are not aired, discussed or determined, and our case law remains impoverished and unhelpful as to how to eliminate discrimination and thereby avoid complaints.
There are currently two matters which have actually gone to Hearing, although both are substantially delayed by various factors and there is no decision yet available.
There is, however, one recent case which has added a little to our body of law on these matters. In January last year the Queensland Anti-Discrimination Tribunal dismissed a matter between "L" and the Minister for Education for the State of Queensland. "L" was a seven year old girl with an intellectual impairment which had a severe impact on her intellectual development, her ability to communicate, her gross motor skills and her capacity to care for herself in matters such as eating and hygiene. She spent two days a week in a Special Education Development Unit, and three at a regular State primary school until a changed arrangement in placed her in the primary school for five days per week. She was assessed as requiring the highest level of support, so an individual program was developed for her and funding for a teacher's aide was obtained.
Despite these arrangements, and many attempts to solve problems as they arose, the school experienced significant difficulties in managing "L's" behaviour, her tendency to regurgitate, and difficulties with toileting. The teachers felt she was learning very little and they experienced great stress in having to cope with "L" while meeting their obligations to other students. At one point it was proposed to "L's" mother that she be placed in another special education unit, but Mrs. O, believing a regular school setting to be the best for "L", declined this offer. In July 1995 "L" was suspended from attendance at the school. Various reviews took place, and the suspension remained in effect. A complaint was brought under the Queensland Anti-Discrimination Act, and finally went to the Tribunal for determination.
The respondent defended its actions on three bases: the claim of potential infective hazard was rejected by the Tribunal; that of unjustifiable hardship was accepted by the Tribunal after consideration of complex evidence, not limited to assessment of financial cost; and the claim that the suspension was specifically required or authorised by an existing provision of another Act was also upheld by the Tribunal. The finding was that there had been discrimination on the ground of disability but that it was not unlawful, and the complaint was dismissed.
Unjustifiable hardship
This matter required the Tribunal to consider unjustifiable hardship in its broadest sense, including the nature of the benefit likely to accrue or the detriment which may be suffered by any persons concerned; the effect of the disability of the person concerned; the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and any other factors which may be relevant in the particular circumstances. These words are taken from s11 of the DDA outlining what must be taken into account when deciding whether or not the defence of unjustifiable hardship will hold up. As you can see, and as the Queensland Tribunal emphasised, this assessment must be made afresh for each case as it arises.
Such assessments have been made informally and without the pressure of the law for many years. Indeed, I remember when in 1981 the first two blind children were allowed to attend a mainstream primary school in Victoria - a mere 16 years ago. Thank heaven for the International Year of Disabled Persons which was, in this country, a sort of Rubicon for people who have disabilities: we may have exhausted ourselves in swimming across it, but once the other shore was achieved there has been no turning back.
Although the assessment of unjustifiable hardship takes account of a variety of considerations, there can be no doubt that the factor most often cited as preventing the integration of a child with a disability into mainstream schooling is funding. The McRae report, released last year, estimated that on average the cost is double that for a child without a disability: but, as the report noted, such averaging is meaningless when the extra cost for one child may be a few hundred dollars for computer software while for another it could be tens of thousands for full time, one-to-one support.
Although complainants often assert otherwise, the provision of "adequate resources" as such is not demanded by the Act. The DDA cannot require State or other governments and authorities to make particular budgetary decisions: it can only require that whatever budget is available is distributed in a non-discriminatory way.
The purpose of ensuring access to education for young people with disabilities, and so for providing the funding, is learning, to whatever level is possible; it is of no use to have access to "being present", just sitting in a classroom, if genuine learning is not facilitated. The DDA does not make any judgement as to the best type of education for students with disabilities; it does not favour mainstream over special, or vice versa. It does require that where a choice is made for mainstream education there be no unlawful discrimination on the ground of disability. Many parents may continue to prefer special education for their child, and the DDA allows for such special measures under s45, provided they do not infringe the child's human rights and are reasonably intended to benefit the child.
The problem of funding, resourcing and supporting non-discriminatory principles has not yet been solved at the political and budgetary end. There is still a tendency to plan and budget for an artificial or non-existent community: the fantasy community of happy young people who do not have disabilities and whose mums and dads are contentedly married, interested in their education, actively and competently involved on school councils and management committees and pack nutritious lunches. Until our governments begin designing for the real world the needs of children who have disabilities will continue to be set aside as too expensive an addition to the "core" budget. If I did nothing else in my five years as Commissioner than begin to get politicians and treasury officials to recognise people who have disabilities as "core" human beings, "core" citizens, "core" members of our community, with the right to be included in "core" budget, then that one thing would have been worth it. But I'm not holding my breath!
On this point, let me share with you something which was presented in 1995 to the American House Subcommittee on Early Childhood, Youth and Families by Richard Riley, Secretary of the U.S. Department of Education. He reported to the House:
"Disabled students and their families do not want to be shut away and given a watered-down curriculum; they want an opportunity to study and to work so that they can contribute to society. Special education is being shown to be an important asset in overall school improvement. Where special education is seen as a "service", and not a "place", it contributes to the overall resources of the school, enriching the teaching and learning for all children.
This means that we must stop thinking about "special education" as a separate program and a separate place to put students, and start thinking about "special education" as the supports and services children need in whatever setting is the least restrictive - whether it be the regular classroom, a resource room, a separate classroom, or a separate school."
Education complaints
I shall now return to some more specific aspects of the DDA in education.
I said earlier that 8-10% of the complaints under the DDA relate to education. Most of these are brought by parents on behalf of their child with a disability, usually in relation to a State Department of Education that wants them to place the child in a special education unit or school, or in relation to behaviour management practices for children whose disability results in challenging behaviours. These latter are, as you can imagine, extremely difficult to handle: often the complaint is a result of the total breakdown of relationship with the school and teachers, and the positions may well be intractably polarised. Sometimes investigation makes it evident that the school has done everything reasonably in its power to sort out the problem, and I may decide to decline the complaint as not involving an unlawful act, or as lacking in substance. On other occasions the perceived discriminatory act may have nothing to do with the child's disability, or there may be no sufficient evidence of the connection, and again I may decline to inquire further into the matter. All my decisions to decline a matter carry a right to review by the President of the Commission. For your peace of mind, most of my decisions are upheld.
Apart from access to the school of choice or behaviour management in the school, complaints cover a wide range of alleged failures to provide adequate or appropriate assistance, for example: Auslan signing, note taking, assessment and examination arrangements, accessible student accommodation and/or personal care, and the recognition of and adjustment for certain learning disabilities. Some research conducted last year suggested that teasing and bullying of students with disabilities by other students and by staff was a significant experience for many, but although harassment in education is covered by the DDA I have received almost no complaints about this.
Most of those matters which proceed to a full investigation, which are found to have some substance, and which do not involve State departments of education will settle by conciliation. Conciliations in the disability area are not only focused on a financial remedy: although this may be a part of the desired outcome, people who have disabilities tend also to be focused on achieving policy change and staff training, and on receiving an apology.
They may also require the institution to develop and lodge with the Commission an Action Plan detailing the steps that will be taken in the future to avoid discrimination on the ground of disability. Many of the 40 or so Action Plans I have received are from education providers - though not all are the result of a complaint.
Drawing lines in the sand
In my discussions with education providers I hear another set of problems. These involve staff stress as more and more responsibilities are given to teachers, some of which it could be argued are not a part of teaching. Is it appropriate that teachers are responsible for the administration of psychotropic drugs? For treating diabetic, allergic or other medical emergencies? For taking an incontinent child to the toilet several times a day? For feeding a child through a gastric stoma? For assisting a child with a catheter? Not to mention in the near future placing children in employment! These are real issues of reasonableness and unjustifiable hardship which have as yet been barely tested by anti-discrimination legislation, and which are part of the whole picture that must be considered in any single complaint. These issues must be addressed in the development of a disability Standard in education because such a Standard will set the maximum that can be demanded as well as the minimum that must be provided: in a Standard these two become, effectively, one. Compliance with the Standard in the relevant area of a complaint would be deemed to be compliance with the DDA for that complaint.
When I addressed the Australian Association of Special Education last year I encouraged teachers, and their representative associations, to begin to draw the line in the sand that states, as far as they are able, what it is reasonable to expect from a teacher. People who have disabilities will then draw another line, and unions, parent groups and other interested parties will all draw their lines. Only when those lines are drawn, when the various parties can see the edges of each others' positions, can we hope to achieve some negotiated outcome, some shared expectation. My experience of teachers is that they will bend and yield as far as possible, and then a little further, so highly do they value the opportunity for education for every child. They are unwilling to draw any line until the stress is so great that eventually a line much more limited that necessary is laid out as the not negotiable maximum, the ditch to die in. This is not the way to create a sensible, workable Standard of any kind. All parties must work towards the creation of a Standard that ensures the level of access to education demanded by the DDA, taking into account reasonableness and unjustifiable hardship, without either diminishing the rights of students with disabilities or expanding the responsibilities of providers.
This process of negotiation and eventual agreement has already been successful in the development of a draft Disability Standard for accessible public transport. The draft Standard has been accepted in principle by all relevant Ministers for Transport, and this decision was reconfirmed at their meeting in May this year. It will not surprise you to learn that the question of school buses has loomed large, particularly the idea that these should be exempted from the Act. My view is that the unjustifiable hardship provisions are sufficient protection for operators who may face a complaint.
Access to education premises: Advisory notes
One of the major issues for students with physical and sensory disabilities is simple access to the premises where the educational enterprise is being carried out, and where people are employed or seeking employment. New school and other educational facilities now also have multiple uses outside of ordinary school hours, for which they need to be accessible.
Another Queensland Anti-Discrimination Tribunal finding, in late 1994, was that compliance with the minimal access requirements of the Building Code of Australia was not compliance with the QADA (nor, by implication, with the DDA) and that the new Queensland Convention Centre should be made accessible at its front or principal entrance. This decision created great consternation in the building industry, such that the BCA is now under review to produce a Code that is more consistent with the DDA. A draft document is currently being circulated for comment, along with a set of Advisory Notes recently issued by the Commission under its guideline making function. These Advisory Notes set out the issues that designers, builders, owners and managers of premises should consider when attempting to meet their responsibilities under the DDA.
An access to premises Standard is not possible under the DDA as it now stands (though I have made submissions to two Attorneys-General for amendment to the Act): the best that can be done at present is the provision of as much information as possible so those with responsibilities can make informed decisions - decisions they are ready and able to defend in the event of a complaint.
Exemption Application
The Lutheran Church of Australia, Queensland District, operates a non-government school system, one aim of which is to provide a school environment free from discrimination. They were concerned that in undertaking special assessments to provide for the needs of students with disabilities, their schools may be open to complaint on the ground that the assessments are treatment different from that accorded to other students, and therefore discriminatory. They asked the Commission to approve a process for resolving disputes with the final stage of the process being an application for exemption from the DDA if all else failed.
The Commission accepted my recommendation and reasons for refusing the application. I pointed out that however reasonable the proposed process may be, it was a matter entirely for the applicants to decide and the Commission had no power to approve it. Further, there was no scope for the Commission to say that a person could or could not make an application for an exemption. Such applications were provided for by the DDA and had to be treated on their merits once received.
The application, and my draft reasons, were subjected to consultation with interested parties according to Commission policy adopted at my recommendation three years ago. It was this application which, though not granted, alerted us to the problem with s22 that I referred to earlier and prompted my submission to the Attorney-General. The applicants have accepted the outcome of their application, and the process has been very useful for all concerned.
This decision and reasons, like so much material from the Disability Discrimination Policy Unit, is accessible to all in a discrimination free format on our home page on the World Wide Web.
Conclusion
As most of you will be aware, the Commission has recently sustained massive cuts to our budget such that we are currently planning the retrenchment of at least a third of our staff, with all that means in contraction of activity.
The government has also made clear its preference for removal of specialised Commissioners and their replacement with a much smaller Commission comprised of a President and an as yet undisclosed number of generalist Commissioners - the actual proposal is not yet known to us.
It is in this context that I make my final remarks:
As you can see, even in this one area of disability discrimination in education, there has been much activity and thought occurring over the last four and a half years. When you add to this the other areas covered by the DDA, this is clearly a complex and important piece of legislation. The right to belong - in a particular school, or in our community in general - is not one that can yet be taken for granted by people who have disabilities.
Despite disability being included in most State anti-discrimination legislation it was only when the DDA and a designated Commissioner came into being at the federal level that significant national activity took place to ensure the rights of people who have disabilities to be full and equal citizens of Australia.
In the brief life of the federal Act real movement has occurred in access to public transportation, to premises and the built environment, to employment, education, insurance, Commonwealth government laws and programs, and in other significant areas. Even major corporations such as banks, insurance companies and leading retailers have begun to get to grips with the issues involved in ceasing unlawfully and unnecessarily to exclude people who have disabilities.
For almost the whole life of Australia since European settlement, people who have disabilities have been dealt with as recipients of charity or government welfare. The perception of people with disabilities only as such recipients is embedded still in the general Australian imagination and understanding. Just over four years of an Act which has as its aim and objective the recognition of the equality under the law of people who have disabilities has not been enough to redress that traditional and limiting perception which still beleaguers and frustrates the legitimate aspirations of people with disabilities to participation in, enjoyment of and contribution to the ordinary life of Australia.
Having a specialised Disability Discrimination Act and a designated Commissioner has enabled people who have disabilities more confidently to exercise their rights as citizens and realise their value as equal Australians belonging among their fellow Australians. It is vitally important that the impetus be continued, and I am confident that future Disability Discrimination Commissioners will be tireless in pursuing the objectives of the Act.
This participation in the civic life of the nation is something that people who have disabilities will not readily relinquish.
