The DDA and its impact in the area of Education

Graeme Innes Deputy Disability Discrimination Commissioner Human Rights And Equal Opportunity Commission Pathways Conference 2 December 2002

Introduction

May I commence by acknowledging the traditional owners of the land on
which we meet today.

Perhaps it's just because I'm getting older, but I increasingly have
the feeling that Australia is becoming a more sentimental and nostalgic
nation. We have a Prime Minister whose vision for us is to be relaxed
and comfortable. And many of us spent last night - after watching the
final stages of the Australian cricket juggernaut's comprehensive winning
of the ashes for the eighth time in a row - watch a bunch of old blokes
who used to be rock and roll singers showing us that it was a long way
to the top. Haven't we got anything more exciting to do than that?

But for people with disabilities it is a long way to the top. A long
way, that is, to achieve equality within the Australian community. The
DDA, passed by our Parliament ten years ago on 15 October last, is one
of the tools which will help us get there. And all of you know, as education
practitioners, that you are assisting to provide many of the building
blocks to move people with disabilities along in that journey.

My role today is to talk to you about the progress that has been achieved
during the last year or two by use of the DDA. Others at this conference
will report on various areas where the education system has contributed
to equality for Australians with disabilities. I want to focus on broad
DDA compliance, and talk about DDA Education Standards, Purvis v State
of NSW, and the forum which the Human Rights Commission ran this year
on provision of materials for tertiary students with a print disability.

Broad compliance

We do not have available anything like a comprehensive or scientific
evaluation of progress, even in a specific area such as education. But
we do know that what has been achieved through the DDA in the education
area has been the subject of some debate.

Here are some comments from a paper for the disability community's Disability
Standards Project in 1997:

"Compliance with the DDA in the tertiary sector is patchy at best.
There are some outstanding examples of tertiary institutions that accommodate
students with disabilities in an exceptional manner. However, these institutions
are in the minority and have to stretch their resources as more and more
students with disabilities gravitate to them. This gravitation takes place
because other tertiary institutions discourage enrollment or continued
participation by students with disabilities."

That was five years ago, but I think it is still fairly representative
of the situation, both with regard to primary and high school, as well
as the tafe and tertiary sector. The decision in Finney v The Hills
Grammar School, where damages were awarded against a school which
rejected an application for enrollment from a girl with spinabifida, demonstrates
that at that time (1999) participation of people with disabilities in
the general education sector was not universally accepted.

Since then we have some encouraging pieces of evidence about Australia's
tertiary education sector, although we also have some continuing questions.
More than half of Australia's universities have provided the Commission
with an Action Plan under the Disability Discrimination Act. These action
plans vary from high level frameworks for further planning to quite detailed
action lists with specific timelines. The best action plans are those
which emerge from genuine processes between an organization and the constituency
it serves, rather than being an off the shelf model imposed or copied
from outside. Also, any plan is better if it does have some action in
it, and is not just all plan.

DDA standards

Work has continued on the development of a DDA Standard in the area of
education. Unlike the areas of transport and access to premises, this
document does not set out time-lines for making infrastructure and rolling
stock accessible, or determine performance requirements for a building
to be accessible in the same way as the Building Code of Australia. What
the draft does try to do is set out some broad policy guidelines which
a assist education providers, as well as adults and children with disabilities
seeking education, to be clearer about what does and does not constitute
discrimination under the DDA. The document tries to fill in the framework
set by the current legislation, and has the same aims of transport and
building standards - to provide clarity and certainty for all.

In the Commission's view, the document does not extend the application
of the DDA, or of the State and Territory legislation which has applied
in most places in Australia for at least as long as the DDA, and in some
cases for up to twice as long. In fact, in one particular area, that is
the extent to which unjustifiable hardship applies, it limits the current
DDA coverage. At present, the unjustifiable hardship provision in the
DDA only applies to enrollment, but the Standard applies it across the
board. This is correcting what in my view was an original drafting error,
but it is narrowing the application of the Act.

However, despite this approach, a number of State government representatives
have opposed the development of these standards. None of them have been
as honest as the private school sector, which has openly indicated its
opposition. Rather they have found reasons to delay and change the draft
again and again, usually either just before or actually at meetings of
the working group, causing maximum delay. The main offenders sit just
north and west of a recent labor landslide, and I am not convinced that
their bureaucrats have always acted with the support of their Ministers.

The worst example of this delaying tactic was when the representatives
of a State whose Parliament has a view of the same harbour that we have
today turned up at a meeting two weeks before the final draft was to go
to Ministers with a legal advice asserting - quite wrongly - that the
Draft Standards went much further than the current DDA, and that they
might even breach the Australian constitution.

This demonstration of bad faith from one of the negotiating parties helps
no-one. These States know that they are currently not complying both with
the DDA and their own legislation, and are worried that DDA Standards
will just highlight this fact. It's about time they concentrated on getting
their own houses in order, rather than continuing the uncertainty in the
education area for all Australians. I hope that the Commonwealth will
take a strong stand on this issue early next year, and work with the disability
sector and the other States to move towards release of a draft Standard.

Purvis case

Many of you would be aware of the decision in Purvis v State of NSW.
In this decision, the Commission's finding that challenging behaviour
was part of the complainant's particular disability, and that his exclusion
from South Grafton High School therefore constituted direct discrimination,
was overturned by the Federal Court and the full Federal court. However,
the High Court has just granted leave to the complainant to appeal this
decision, and the appeal will be heard in the first half of next year.
The Commission is also a party to this action.

The Comments of the High Court Judges in granting this leave suggest
that they were not all in accord with the way the Federal Court made its
decision, so we may get some new law from the highest possible court in
the education area quite soon. The Commission will keep people advised
of the hearing and the decision on its website and there is a place on
this site where you can subscribe for regular updates. So watch this space.

Access to tertiary materials

There are probably many things for which US then Vice-President Al Gore
won't be remembered, but he will certainly earn a place in history as
the originator of the phrase "information superhighway". Some
of us like it, some of us don't, but we all now live within sight, sound
or touch of it, and that highway is bringing more information into our
lives than ever before. But, like most highways, the information superhighway
has come at a price: we have information, but we also have information
overload; we have more spam than Monty Python could ever have imagined;
and some sections of our society continue to experience information traffic
snarls.

The would-be information prophets told us that we'd son have the paperless
office, and that print books would soon be housed only in museums (where,
presumably, they'd charge the people a dollar and a half just to see 'em,
to paraphrase a Joanie Mitchell song). Like most prophets, they were wrong,
of course: the information highway has given us more print than ever before
in human history, along with all the other newer technologies such as
the Internet and mobile phones. Having a print disability today is far
more challenging than it was in the days of papyrus and hieroglyphics.

With each new revolution in the development of our civilisation, people
with disabilities have had to develop new strategies for turning challenges
into opportunities. In many respects, the forum on accessible tertiary
materials that the Commission organised earlier this year is part of this
ongoing process of adapting to change. The higher education sector is
changing rapidly; the number of students with a print disability is increasing,
but so are the costs of producing materials in braille, large print, e-text,
and other alternative formats; the range and complexity of course materials
is increasing, and students are expected to be computer-literate enough
to send email, participate in online conferences, search electronic databases,
and download lecture notes from the Web. The result is that many university
students with a print disability have experienced frustrating traffic
congestion and dead ends on the information superhighway.

Early this year, the Commission was asked by advocacy groups and students
themselves to investigate ways of improving the situation. We felt that
the most effective way forward was to convene a forum that all Australian
universities would be invited to attend, to initiate the development of
strategies for providing curricular materials in accessible formats in
a cost-effective, efficient, and needs-appropriate way.



The forum was held on May 29; approximately 90 people participated, representing
35 of Australia's 39 universities, university librarians, government departments,
publishers, and students. Prior to the forum, on May 28, a session was
held to clarify and discuss copyright legislation and regimes as they
impact on students with a print disability. Most participants in the forum
also attended this session on copyright. In organising the forum, the
Commission received strong support from the Australian Vice-Chancellors'
Committee, and I want to acknowledge their contribution to the forum itself
and also to the work that has taken place as a result.

The forum included the presentation of a number of "perspective
papers" that examined relevant issues from a variety of standpoints,
including student, academic, disability support staff, and government.
These papers are on the HREOC website, along with other background material,
including the discussion paper that the Commission wrote to provide an
overview of the issues to be discussed. Anyone unfamiliar with the issues
would probably find it useful to begin by reading this discussion paper,
and then move on to the perspective papers and other materials.

After the various presentations, the forum divided into 5 discussion
groups, each group dealing with a specific topic area:

1. Approaches to Production;

2. Copyright and Publishing;

3. Digital Libraries and the Sharing of Information in Accessible Formats;

4. Sector and Cross-sector Standards and Guidelines

5. University Policies, Practices and Procedures.

Each group was asked to develop recommendations aimed at improving access
to curricular materials by students with a print disability. The complete
list of recommendations is also available on our website, but I would
like to highlight some of the recommendations that we feel are the most
significant in terms of the benefits that will flow from their implementation.

A key aspect of providing accessible curricular materials is ensuring
that they are produced in a cost-effective and efficient way. Achieving
this goal has implications for all sections of what we can think of as
the "commodity chain" for accessible-format materials, from
a lecturer who writes a set of lecture notes, disability support staff
who liaise with lecturers, specialist producers of accessible-format material,
and, of course, students themselves. To ensure that there is a unified
and consistent approach to the production chain as a whole, it was recommended
by the forum that a working group be established to examine production-related
issues, including the current and projected demand for accessible-format
materials, the extent of production that is occurring both within the
sector itself and via outsourcing to specialist producers, and ways of
facilitating the sharing of existing material and preventing unnecessary
duplication.

A second key group of recommendations that was developed by the forum
relates to publishing and copyright. One of the most exciting opportunities
that the information superhighway makes possible is the use of source
files from publishers as the basis for producing accessible-format versions
of books. This would substantially reduce the time and cost of production,
since there would be no need to scan the print book or type it into the
computer. The forum's recommendations in this area envisage the creation
of a national clearing-house of publishers' files to which producers would
have access. This is clearly a medium- to long-term project, but it is
one that will have significant benefits for students.

An associated recommendation calls for greater discussion of the ways
in which copyright laws and regulations can be used to enhance, rather
than restrict, access to materials by students with a print disability.
Continuing my earlier metaphor, the copyright stretch of the information
superhighway is full of deep potholes, and our task is to re-tar the surface
so that people with a print disability don't become stranded.

The forum provided a unique opportunity for the higher education sector
and the disability community to share their expertise at the beginning
of a process of achieving systemic change through consensus. The recommendations
were directed towards achieving greater access by improving current processes,
and by opening up mainstream channels. For the forum to be effective,
however, requires ongoing work by the sector. Shortly after the forum,
the Commission held discussions with AVCC to decide how best to go about
the task of implementing the forum's recommendations. We decided to establish
a Steering Committee on Accessible Curricular Materials for Universities.
The main role of this committee is to develop strategies for implementing
the forum recommendations. The committee is chaired by Prof. Sue Johnston,
who is the Pro-Vice-Chancellor (Teaching and Learning) and the University
of Tasmania; Kerri Allen, who is Chair of the University of South Australia's
Disability Advisory Group, is the other university representative; other
members of the committee are AVCC, Blind Citizens Australia, Department
of Education, Science and Training, the Tertiary Education Disability
Council of Australia (TEDCA), and the Commission.

The first meeting of the Steering Committee was held in Sydney on November
1, and the next meeting has been scheduled for February 18 next year.
Notes from the meeting will shortly be available on the Commission's website,
but some of the key outcomes of the meeting are: first, a working group
has been established to consider the forum recommendations relating to
production; second, the Commission will be following up with the publishing
and copyright sector to establish a process for dealing with the recommendations
in these areas; third, TEDCA will be compiling a register of current producers
of accessible-format curricular material for university students.

The Commission believes that the forum and the work that is taking place
as a result will, over time, lead to greater access and equity for university
students with a print disability. Now is the ideal time for all universities
to review their individual and collective policies, practices and procedures
to ensure that they complement and support this work.

Conclusions

I don't think it would be a good idea to spend all of the Commission's
limited budget on trying to gain a fully scientific evaluation of what
has been achieved over the first decade of the DDA - we could spend years
trying to count ramps installed, pages published in accessible forms and
so on. But as in any activity, in the business of seeking to eliminate
disability discrimination, it is important that we do have some idea of
what an acceptable degree of success would look like, and some idea of
whether we are getting there.

In October of this year, HREOC announced that for the tenth anniversary
of the commencement of the Disability Discrimination Act (March 2003),
we will be releasing a publication on achievements so far: achievements
in moving towards equal opportunity and access for people with disabilities.
This publication will include information on outcomes where HREOC has
been directly involved, through the complaint process and also through
other avenues provided by the legislation, such as standards development,
exemption processes and public inquiries. But of course, a small national
human rights commission cannot be involved in every activity across Australia,
or even know about these activities, unless people tell us about them.
We cannot and do not know about every issue still to be addressed, without
input from people closer to the action - as people with disabilities or
as service providers or as both. I would very much welcome any views and
information you have on where we have got to so far. I would also like
to receive views on where we need to go over the next ten years in eliminating
discrimination and achieving equality - both in terms of issues to address
and in terms of the right processes for addressing them.

So to return to my introduction: for Col Joye and others it was a long
way to the top, and more importantly a long time since they've been there.
For people with disabilities we haven't made it yet. But let's dream of
the day in 20 years time when nostalgic tv program makers will be airing
specials on pathways conferences, and the contribution those attending
them made to equality or reaching the top for people with disabilities.
This may only be a dream, but you know that dreams are made in heaven,
and if there's a rock and roll heaven, then the inclusion of people with
disabilities would make one hell of a band.