Advancing equality in education and beyond
|Eastern Metropolitan Region Student Disability Conference
1 September 2005, Melbourne Convention Centre.
Dr Sev Ozdowski OAM
Acting Disability Discrimination Commissioner
Allow me to begin by acknowledging the people of the Wurundjeri nation, the traditional owners of the land on which we meet, and pay my respects to their elders both past and present.
I follow this custom wherever I go to speak in public. I think recognising Australia 's indigenous peoples and their prior ownership of this land in this way is more than just good manners. It is an important part of recognising our diversity as a nation.
The dimension of diversity I am here to talk about today, though, is disability, as an essential element of our experience in human communities, and as something it is essential for communities and governments to acknowledge and respond to appropriately.
I will be talking mainly today about developments affecting equality in education, and in particular about the new Disability Standards for education which have come into force just this month.
But I want to start by talking about the Disability Discrimination Act more generally, and then talk a little about initiatives in the employment area before coming back to education.
The Disability Discrimination Act
The Disability Discrimination Act was passed in 1992 and came into effect in March 1993.
Its objects were, and are,
- to eliminate, as far as possible, disability discrimination in various areas of life;
- 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 the recognition and acceptance within the community of the principle that people with disabilities have the same fundamental rights as the rest of the community.
The DDA covers a disability which people:
- Have now,
- Had in the past (for example: a past episode of mental illness),
- May have in the future (for example: a family history of a disability which a person may also develop), or
- Are believed to have (for example: if people think someone has a disability or illness because they are a carer for someone who has that disability or illness).
The DDA also covers people with a disability who may be discriminated against because:
- They are accompanied by an assistant, interpreter or reader,
- They are accompanied by a trained animal, such as a guide or hearing dog, or
- They use equipment or an aid, such as a wheelchair or a hearing aid.
The DDA also protects associates of people with a disability such as family, friends, carers and co-workers if they are discriminated against because of that relationship.
The intention in drafting the legislation was to avoid arguments about whether a person's condition is a disability. We have not seen the same perverse results as there have been in the US and the UK, where for example cancer survivors who have been discriminated against have been denied a remedy because they could not show they were "substantially restricted in a major life activity": that is, they could not show they were disabled enough to be protected against being wrongly treated as more disabled than they were!
The drafters of the DDA did better than this because they were clear that in defining disability under the DDA they were not conferring any special rights - only the right not to be discriminated against.
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 administration of Commonwealth laws and programs.
The legislation covers both direct and indirect discrimination.
Direct discrimination happens when people with a disability are treated less favourably than people without the disability are treated or would be treated.
The Act also covers indirect discrimination, where people with a disability are not singled out for less favourable treatment but where a one size fits all rule or situation actually excludes or disadvantages people with disabilities.
So for example an education provider which provides course information only in one format such as print discriminates indirectly against students who cannot use that format.
A building with entrance only by steps indirectly discriminates against people who use wheelchairs or have other mobility impairments.
Areas of achievement
Hundreds of complaints about this sort of situation have been resolved under the DDA. On a national scale we are close to finishing negotiations for upgrading of the access provisions of the Building Code and for these provisions to be recognised in a standard under the DDA, so that accessible design will become more of a matter of routine than it is now.
Similarly you may have noticed an increasing proportion of railway stations, buses and even trams becoming accessible, here in Victoria and across Australia, in particular for people with mobility disabilities. In part that has been a result of complaints under the DDA and equivalent State and Territory laws, as well as a cooperative response from most of the transport industry through development of action plans and national standards to guide the change towards accessible systems.
Importance of complaints
You will see that I have been emphasising complaints as a means for achieving large scale changes, or at least for starting off other processes which lead to change.
It may seem unfair that it is up to people on the wrong end of discrimination to do something about it.
I understand the perception of many people in the community that once the law is there, it should just be complied with.
But not many laws are like that - otherwise we would not need traffic police and speed cameras for example.
Alright then, but isn't it the Human Rights Commission's job - isn't it in fact my job - to see that the DDA is enforced and implemented? Shouldn't we be out with the "discrimination cameras", and issuing on the spot fines for infringements?
Certainly, we have a role in promoting awareness of and compliance with the legislation.
- negotiating standards for improving access and equality
- conducting public inquiries on systemic issues;
- encouraging business and government organisations to be proactive in removing discrimination, for example by developing their own disability action plans.
But still, the ability of the Commission to initiate or achieve change by itself is very limited.
I have three and a half staff for all disability policy issues across Australia and my own role as Disability Discrimination Commissioner is an acting position on top of my role as Human Rights Commissioner.
Unlike bodies such as the ACCC, the competition and consumer watchdog, the Commission does not have power to initiate complaints or legal proceedings under the legislation itself.
The "discrimination cameras" and equality inspectors around Australia do not consist of any large paid bureaucracy, then, but of the millions of people with disabilities and their advocates who have the power to use the legislation in direct advocacy and negotiations to achieve change, and who have the power to use the complaint process.
Complaints can be made:
- by a person directly affected by discrimination
- by a person acting on behalf of another person who has been discriminated against
- by a person on behalf or him or herself and on behalf of other people who have experienced the same discrimination (this is what is meant by a representative complaint or class action); or
- by an organisation acting on behalf of members or constituents who have been discriminated against .
Compared to other legal processes, there are very few formal requirements for discrimination complaints. Complaints do need to be put in writing but people who have difficulty with this can ask Commission staff to assist. Complaints can now also be made by email.
In some circumstances the Commission can also assist complainants to find other supports they might need, like an interpreter or advocate.
A network of disability discrimination legal services was funded by the federal Attorney-General's Department from the outset of the legislation and there are also specific legal services focused on mental illness, HIV/AIDS and intellectual disability.
HREOC will investigate any complaints received that are within its area of responsibility. If it appears that disability discrimination has occurred, the person or organisation will be asked to participate in a conference with a conciliator and the complainant in order to help resolve the matter to the satisfaction of both parties. This is called conciliation. Depending on the complaint, conciliation may result in:
- changes in policies or practices
- reversal of a discriminatory decision
- an apology
- withdrawal of the complaint
- payment of damages, and/or
- some other outcome.
Where a complaint cannot be resolved by conciliation, you can take your complaint to the Federal Court or the Federal Magistrates Court for an enforceable ruling if you choose to.
I should stress that only a very small proportion of complaints end up in the Court. Of the complaints which are found to be within our jurisdiction a large majority are resolved by conciliation.
Employment: lack of progress since 1992
In many ways there has been a huge amount of progress over the last 20 years.
Much of that has come from thousands off instances of individual advocacy and activism.
Some of it has come from changes in social attitudes.
In turn some of that change has been influenced by legislation including the Disability Discrimination Act. The area where there has probably been least progress is employment.
This is ironic and disturbing, since i mproving employment opportunity and outcomes for people with disabilities was a large part of the original motivation for introduction of the Disability Discrimination Act in 1992.
It was meant to contribute to making a difference to employment outcomes overall for people with disabilities in Australia .
And yet, after more than 12 years of experience in implementation of the DDA, and after more than two decades of similar legislation in State jurisdictions covering over half the Australian workforce - I mean, the 1980s anti-discrimination laws of NSW, Victoria, South Australia and Western Australia - the employment position for people with disabilities does not seem to have improved; if anything, it has got worse.
More complaints are received on employment issues than any other area under the DDA. A high proportion of these complaints have been resolved by conciliation. But it must be obvious after 12 years of the DDA and over 20 years of similar State legislation that we cannot hope to achieve equal opportunity for millions of Australians with disabilities one complaint at a time.
A national inquiry on employment and disability
In March this year the Human Rights and Equal Opportunity Commission launched a National Inquiry into Employment and Disability.
The time seemed right for such an inquiry:
- On a personal note I did not want to finish my term as Human Rights Commissioner and Disability Discrimination Commissioner later this year without doing my best to make a difference to employment outcomes and opportunities for Australians with disabilities.
- The debate this year about welfare reform and a growing awareness of skills and labour shortages emerging in the Australian economy have highlighted, more than I can ever remember happening before, the need to ensure that people with disabilities can participate and contribute their abilities in the workforce.
This Inquiry is about finding ways to make it easier for people with disabilities to participate in the open workplace; and for employers to hire people with disabilities.
The major strengths of the Commission's inquiry process are that it is independent of government or any interest group, and that it will allow anyone with constructive ideas and solutions to bring them forward.
We want to focus on practical solutions.
So far there are three emerging issues:
1. Information - people with disability and employers are concerned about the absence of easily accessible and comprehensive information that can assist in their decision making processes and support their ongoing needs.
2. Cost - people with disability are concerned about the costs of participation, and employers are concerned about the costs of employing a person with disability.
3. Risk - people with disability and employers are concerned about the financial and personal impact of participating in the workplace, especially if a job does not work out.
Where are we up to?
On 19 August we released an interim report.
The purpose of the interim report is to:
- summarise the information received from the submissions
- provide a platform for action over the next few months
- gather further input and cooperation from various sectors on developing solutions
The final chapters in the interim report set out the Inquiry's recommendations and next steps. The "next steps" section of the report indicates an extremely busy few months ahead. But then, that is what we are paid for.
Some of the recommendations address issues which are already on the government's agenda
- The creation of a one-stop shop for information
- A review of employer incentives - including the Workplace Modification Scheme
In these areas we will seek to add value to the work already going on.
In a further four areas we are convening working groups of experts from government, employer organisations and the disability community. The agendas for these working groups are:
- Develop a pilot project to identify any risks associated with occupational health and safety laws, disability discrimination laws and industrial relations laws
- Develop a model for work trials to enable people with disabilities to demonstrate their abilities and work with employers to resolve their concerns
- Develop a model for providing ongoing support to employers and employees with disability
- Develop a model for a flexible workplace, drawing on work done on family friendly workplaces.
More submissions welcome
We are taking a further round of public submissions in response to the interim report. The deadline for submissions is 30 September 2005 so I encourage anyone interested in making a submission to do so as soon as possible.
Any feedback received by the Inquiry will be discussed in the final report, which is due to be published by the end of 2005.
We will also be producing two further issues papers: one on international models for increasing participation and employment, and one specifically on international models for government policies on accessible procurement.
Accessible procurement and universal design approaches
This second topic might sound incredibly dull. But one thing I have learned in dealing with disability issues is that, at least in this area, equality cannot be built out of sweeping principles and lofty rhetoric. Disability is a very practical business, and eliminating disabling features in our human systems and environments requires attention to practical details.
- Can a person using a wheelchair fit through a doorway while still being able to keep their hands on the rims of the wheels to propel the chair?
- Will the frequency range of a hearing loop work without excessive electrical interference in the same frequency range?
- Can a person with cognitive difficulties complete the tasks for paying a bill over the phone without taking more time than the system allows?
- Does a document make sense when read out by screen reader software or will it come out as junk?
Nothing very exciting perhaps in the detailed work required to deal with any of these issues. Except that these details are what equality is made of.
Other countries such as the United States and Canada have laws and policies in place requiring that when government purchases facilities, in particular such as information and communications technology, it must wherever possible ensure that these facilities are accessible to people with disabilities. The European Community has adopted a high level directive on accessible procurement and is now moving to fill in the details.
The point of all this is that if facilities and systems and technologies are built to be accessible from the outset, then when an employee acquires a disability or a person who has a disability applies for a job, it will not be such a big deal so often. There will not need to be decisions about whether adjustments needed are reasonable or would impose unjustifiable hardship, if the adjustment has already been built in to the ordinary way of doing things.
Let's be honest: probably most employers would look for a way to avoid putting in an expensive adjustment like a lift to meet the needs of one customer or potential employee who comes along. That is why we have accessibility requirements in building codes, and why we are working to improve those requirements, instead of every accessibility feature only being thought of in response to an individual request.
Universal design in education facilities and systems
The same sorts of issues arise in education. The Disability Standards for Education - which I am coming to, believe me - emphasise duties to make reasonable adjustments and the importance of consultation with the individual student to get the required adjustment right. But these individual adjustment processes should also be seen in a broader context of inclusive approaches and universal design of facilities and systems.
Clearly it is in everyone's interests if as broad a range of needs as possible is already taken into account in the way an education provider works before the student even arrives. You don't want to be having to install accessible buildings or accessible information systems on the first day of term if you can have already built these features into the ordinary way of doing things.
I don't mean that universal design approaches to physical facilities and information systems can or will make every disability issue a non-issue every time. Many individual circumstances will always require an individualised response. But I do think that accessible procurement policies by governments and perhaps by business too can make disability less of an issue more of the time.
From employment to education
The reason I have spent some time talking about employment here, at a conference focused on education, is not just because this Inquiry on employment and disability is taking so much of my own organisation's time and attention at present.
However valuable the pursuit of knowledge is in its own right, most of us pursue education as a means to an end: to be able to work in our chosen field, or to have a wider range of employment opportunities and choices available to us.
More and more, education and training are the keys to employment opportunities.
Some input to our Inquiry on employment has gone so far as to suggest that there is no point in trying to do anything about equal opportunity in employment until as a society we have achieved equal opportunity in education for people with disabilities.
I have resisted the temptation to take that as an invitation to suspend the Inquiry for another 20 years or so. But certainly equality of opportunity in education is an essential foundation for equal opportunity and participation in social and economic life more generally.
Around 10% of DDA complaints relate to education.
In 2003 I released a publication called "Don't judge what I can do by what you think I can't: Ten years of achievements using Australia 's Disability Discrimination Act". This included summaries of samples of complaints conciliated under the Act, in education and other areas.
Demand for this publication has outstripped our current ability to afford reprinting it. However, it is available in full on our website. The complaint summaries are also available separately on the site and have continued to be updated since then.
I might take a moment though to run through recent summaries to show the range of complaints and outcomes there has been.
Interpreters in professional training course
A woman who is deaf complained that her professional association would not provide an interpreter to enable her to participate in its professional development courses. The complaint was settled when the association agreed to provide interpreters with 14 days notice.
Disruptive behaviour and education access
The mother of a 14year old boy with obsessive compulsive disorder and other disabilities affecting behaviour complained that he had been discriminated against when he was suspended from school, and then excluded from face to face elements of distance education adopted as an alternative, after incidents of inappropriate behaviour including violence. The complaint was settled when the parties agreed that mainstream schooling was not able to fulfil the student's needs and he was more successfully placed in a nearby specialist school.
Access to course materials
A student who has a neurological condition affecting how he receives and processes spoken information complained that arrangements to provide him with lecture notes in written form had broken down and that he had failed subjects as a result. The complaint was settled when the university agreed to ensure that all lecturers provided notes when required in accordance with university policy, and to provide an exemption from HECS liability for the period of study affected by failure of arrangements for accessible materials.
In another case, a mother complained on behalf of her son who has a reading disability that materials were not being provided in CD form in a timely manner. The matter was settled with an agreement to improve access policies including ensuring that students were aware of school procedures for reasonable adjustments to be considered and for complaints, conducting additional disability awareness training for staff and refunding $15000 of fees.
School assessment adjusted
A father complained that his son, who has a number of disabilities including Asperger's syndrome and Tourette's syndrome, was being discriminated against by an assessment system for English oral presentation. The complaint was settled with an agreement to provide a number of modifications to testing procedures for the student to accommodate his disabilities, including taking tests in familiar environments and being allowed to colour code his notes.
Access to lecture rooms
A student who has chronic airways disease and has difficulty climbing stairs complained that lectures at his college had been scheduled on the first floor which has no lift. The complaint was settled when the college agreed to seek funding for installation of a lift and to increase staff training in disability awareness.
Return to boarding school
A mother complained that her daughter had been discriminated against by her school because of anorexia nervosa. She stated that the school would not let the student return as a boarder until she had regained a weight within the normal range because of concerns about upsetting other students. The complaint was settled when the school advised it was willing to have the student return as a full time boarder.
Hepatitis C discrimination in education
A woman who is hepatitis C positive complained that she had been discriminated against in her pathology course. One element of the course involved students taking blood samples from each other. She was willing and able to take blood but asked that other students not take blood from her to avoid health risks. She claimed that as a result she was excluded from core components of the course. The complaint was settled with an apology, payment of $7000 compensation, and an agreement to have staff trained in issues regarding blood borne diseases.
Accommodation of vision impairment in school tests
A mother of a boy who has a vision impairment complained that his disability was not being accommodated in sitting a statewide test for year 5 students. The complaint was settled when the education authority agreed (within one month of the complaint being received by HREOC) to the test being provided to the boy on non-glossy blue paper in 24 point type as requested.
Summaries are also available of cases which were not settled by conciliation and which came up for decision by the Commission - in the tribunal function which HREOC had up to 2000 - or by the courts.
One of the best known DDA cases was Finney v Hills Grammar School , where an independent school was found to have discriminated in refusing enrolment of girl with spina bifida. The defence of unjustifiable hardship was found not to have been established. $42628 damages was awarded for discrimination in refusing enrolment.
Another landmark case was Kinsela v. Queensland University of Technology.
A student who uses a wheelchair complained that he would not be able to participate equally in the graduation ceremony because it was to be held in an inaccessible venue. Even though arrangements could be made to accommodate him on stage, he would not be able to participate in the procession with his year group and be part of the experience of receiving his degree in the same way as everybody else. The Commission ordered that the graduation ceremony be moved to an accessible venue.
A contrast is provided by the decision in Mrs J (on behalf of herself and A.J.) v A School , decided back in 1998. A.J. had hip disease making it difficult and dangerous for her to climb stairs. The Commission found the school had not imposed an unreasonable condition or requirement in refusing to move AJ's classes to downstairs classrooms. This would have involved disrupting the arrangements for 200 students and AJ had been offered the option of moving into a different but equivalent class downstairs, although it was acknowledged this would involve some loss of contact with friends already made in her existing classes.
Why Disability Standards
These summaries perhaps illustrate that the anti-discrimination provisions of the DDA and the complaint process have been achieving important results for individual students with disabilities, while balancing their rights with those of other people involved.
However, education providers and disability advocates alike have long recognised that addressing discrimination issues one case at a time is not all that is needed.
The Disability Discrimination Act includes provision 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.
Other Australian discrimination laws do not contain this kind of provision, relying on the complaint process, and on promotional activities by HREOC and its equivalents at State and Territory level, to translate general rights into practical realities.
By providing for standards the DDA recognises that these processes are not enough in the disability area. This is one feature which was borrowed from the United States legislation, the Americans with Disabilities Act.
The purpose of standards 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.
Disability Standards, then, can reduce some of the uncertainty arising out of open ended discrimination provisions, and, importantly, will reduce the burdens of time, staff resources, expense, uncertainty, and personal stress and anxiety involved both for students and for education providers.
Disability Standards for Education
The Attorney-General and the Minister for Education Science and Training announced on 18 August this year that more than 210,000 Australian students with disabilities will benefit from the commencement of the new Disability Standards for Education.
The Standards have been developed through extensive consultation with education, training and disability stakeholders, as well as the involvement of the Human Rights and Equal Opportunity Commission.
They set out:
- the obligations of education and training providers in relation to the education of students with disabilities,
- how those obligations can be met; and
- what students with disabilities can reasonably expect in participating in education.
The Standards apply to government and non-government providers in all education sectors, including the pre-schooling, schooling, vocational education and training, higher education, and adult and community education sectors.
They also apply to providers of educational services, including curriculum and accreditation bodies.
Unlike the accessible public transport standards, the education standards do not set out time-lines and specifications for making facilities and systems accessible.
I suppose this is a recognition that education is even more complicated than trying to get the trains to run on time.
What these standards do try to do is set down principles which 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; and processes to avoid discrimination occurring.
The standards and existing rights and responsibilities
DDA section 34 provides that if a person acts in accordance with the Standards, they comply with the DDA.
The other side of the same coin is that under DDA section 32 an education provider must comply with the Standards or it will be acting unlawfully.
In the Commission's view, the standards do not significantly change the existing legal effect of 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.
The main possible exception to this is an area where the standards limit the previous DDA coverage. At present, the unjustifiable hardship provision in the DDA only applies to enrolment, but the Standard applies it across the board. This is correcting what in my view was an original drafting error, and allows a reasonable balancing process at all stages instead of decisions having to be made once and for all before admission.
In most respects our view is that the Standards fill out the details of existing rights and responsibilities rather than creating new ones.
Explaining and promoting the standards
This is one reason why we have not embarked on any extensive promotional campaign for the commencement of the Standards or produced specific promotional materials.
Another reason is that we simply do not have additional resources available for such an exercise.
A third reason is that the Standards are accompanied by their own extensive Guidance Notes. These are intended to provide additional explanation, including background information and comment, to assist users of the Standards in interpreting and complying with the Standards.
Professional development and awareness raising
As the guidance notes state, good practice requires education providers to ensure that their staff are proficient in interacting with students in ways which do not discriminate against people with disabilities and which are effective in achieving equal access and opportunity.
The guidance notes contemplate educational institutions incorporating these elements into their own training and professional development work rather than HREOC or the Commonwealth Government trying to perform this role for the education sector. I think this is the right approach because while we clearly should provide what assistance we can, it seems to me that mainstreaming of disability issues into providers' own policies and procedures is likely to be more successful than a stand alone approach from a discrimination agency.
Obligations and measures
The Standards contain obligations , with which education and training providers must comply. They also set out measures accompanying each statement of obligation. These provide examples of actions that providers may take to ensure compliance with their legal obligations. Compliance with some or all of the measures may be relevant to a defence against a complaint but providers may also choose to take different measures to achieve compliance with the same obligations.
The Standards give students and prospective students with disabilities the right to education and training opportunities on the same basis as students without disabilities. This includes the right to comparable access, services and facilities, and the right to participate in education and training unimpeded by discrimination.
To achieve this, education providers are under a positive obligation to make reasonable adjustments to accommodate the needs of students with a disability.
An adjustment is a measure or action taken to assist a student with a disability to participate in education and training on the same basis as other students.
Adjustments must be made if they are reasonable and do not impose unjustifiable hardship.
In assessing whether a particular adjustment is reasonable for the student with a disability, the education provider should take into account:
- the nature of the student's disability;
- information provided by, or on behalf of, the student about how the disability affects the student's ability to participate;
- views of the student, or an associate of the student, about whether a proposed adjustment is reasonable and will enable the student with a disability to access and participate in education and training opportunities on the same basis as students without disabilities;
- information provided by, or on behalf of, the student about his or her preferred adjustments;
- the effect of the proposed adjustment on the student, including the student's ability to participate in courses or programmes and achieve learning outcomes;
- the effect of the proposed adjustment on anyone else affected, including the education provider, staff and other students; and
- the costs and benefits of making the adjustment.
The education provider should act upon information about an adjustment in a timely way that optimises the student's participation in education or training (section 3.7).
The fact that a student's preferred form of adjustment is impracticable does not relieve an education provider of the responsibility to seek another effective form of adjustment if possible.
Obtaining disability information
When considering an adjustment for a student with a disability, a provider is entitled to information about the student's disability and individual requirements if that information is directed towards:
- providing the adjustment, including assessing the nature and extent of the adjustment needed and assessing the provider's capacity to provide the adjustment; and
- an assessment that is intended to clarify the student's ability to comply with any non-discriminatory requirements of a course or training program.
Any confidential information provided to education providers for the purposes of making adjustments should not be disclosed except for the purposes of the adjustment or in accordance with other lawful requirements.
Education providers will only be held responsible for making adjustments where they are informed of the need for adjustment or should reasonably have ascertained this need, within sufficient time for the adjustment to be made.
What is reasonable notice is likely to depend on the particular circumstances.
In some circumstances, an education provider might reasonably be expected to be aware of and accept the need for an adjustment without a specific request or without detailed independent evidence of this need. For example, a large university ought to expect that some students will require wheelchair access.
In other circumstances, it may be reasonable to require that a request for adjustment be made in advance or that it be supported by medical or other expert evidence. Students or parents should be prepared to meet reasonable requests for information and evidence about the nature or existence of a disability and in some circumstances may need to take the initiative in providing information and evidence.
Academic integrity of courses and adjustments
Changes which involve lowering academic standards or a change in what the assessment is designed to measure are not required.
The standards state that in making reasonable adjustments, the provider is entitled to ensure that the integrity of the course or program and assessment requirements and processes are maintained.
A Commission decision under the existing DDA provisions - W v Flinders University - took the same line. It also indicated that if a course is designed to teach and test abilities which are based on the entry requirements for a profession, the DDA does not require changes to the course requirements, even though a less professionally focussed course might have been open to a wider range of students with disabilities.
Some adjustments - such as provision of course materials in alternative formats - would not appear to raise any issues of academic standards. Others, however - such as being excused from performing a practical task - could well call into question whether the student has mastered and demonstrated the skills which the course is designed to teach and test, depending on the nature of the course.
In some cases it may not be clear in advance whether a student with a disability can or cannot meet course requirements, until the student and the university have discussed possible difficulties and adaptations.
As already noted the Standards require some process of consultation before decisions are made on what adjustments are possible to accommodate a student's disability.
Consistent with the DDA, an education provider does not have to comply with a requirement of the Standards to the extent that compliance would cause "unjustifiable hardship".
The provider may consider all costs and benefits, both direct and indirect, that are likely to result for the provider, the student and any associates of the student, and any other persons in the learning or wider community, including:
- costs associated with additional staffing, the provision of special resources or modification of the curriculum
- costs resulting from the student's participation in the learning environment, including any adverse impact on learning and social outcomes for the student, other students and teachers, and
- benefits deriving from the student's participation in the learning environment, including positive learning and social outcomes for the student, other students and teachers, and
- any financial incentives, such as subsidies or grants, available to the provider as a result of the student's participation.
In determining whether a requirement would cause 'unjustifiable hardship', the guidance notes indicate that it is good practice for an education provider to:
- take into account information about the nature of the student's disability, his or her preferred adjustment, any adjustments that have been provided previously, and any recommended or alternative adjustments. This information may be provided by the student, an associate of the student or independent experts (or a combination of those persons)
- ensure that timely information is available to the student, or an associate of the student about the processes for determining whether the proposed adjustment would cause unjustifiable hardship to the provider; and
- ensure that these processes maintain the dignity, respect, privacy and confidentiality of the student and the associates of the student, consistent with the rights of the rest of the community.
In cases where a provider decides that an exception applies, it is the responsibility of the provider to demonstrate how the exception operates.
If the provider decides to rely on unjustifiable hardship, it is good practice for the provider to ensure that a notice stating the decision and the reasons for the decision is given to the student, or an associate of the student, as soon as practicable after the decision is made.
Harassment and victimisation
The Standards also address issues of harassment and victimization. Education providers are obliged to put in place strategies and programs to prevent harassment and victimization of persons with a disability or their associate.
The specific harassment provisions of the DDA itself in relation to education - sections 37 and 38 - prohibit harassment only by staff.
The Standards go beyond this, requiring education providers to ensure that staff and students are aware of the obligation not to harass or victimise students with disabilities or students who have associates with disabilities. The Standards require the education provider to take reasonable steps to ensure that staff and students are aware of appropriate actions to be taken if harassment or victimisation occurs.
Does the DDA affect rules about student behaviour?
What rules educational institutions can have about behaviour has been controversial, and it is not one of the issues spelt out expressly in the standards, so I want to take a minute to talk about this subject. Protection of the safety or rights of students or staff and the effectiveness of the learning environment are clearly important and legitimate purposes for an educational authority.
Reasonable rules about behaviour are not discriminatory under the DDA. However, rules which are unreasonable or are unreasonably applied may involve indirect discrimination. This principle is now clear even though there is a complex legal history behind it including a High Court decision (Purvis v NSW ).
What is unlawful and what is reasonable have to be considered in the circumstances of each case. Automatic application of a standard penalty - such as suspension for fighting or other disruptive behaviour - may not always be reasonable where a disability has caused the behaviour. Equally, however, the fact that a student has, or is regarded as having, a disability does not excuse the student from complying with reasonable application of reasonable rules.
Associates of person with a disability
The Standards generally do not deal with discrimination because a person is an associate of people with disabilities.
This is because at present the power to make standards only extends to standards concerning people with disabilities themselves rather than extending to associates as well.
We expect that this limitation of the standards making power will be addressed in amendments to the DDA shortly.
Meanwhile however the general non-discrimination provisions of the DDA do apply to associates and as I have said our view is that they have similar effect to the standards despite this not being set out in detail.
If a student with a disability or someone acting on their behalf believes that a provider is failing to comply with the Standards, a complaint about unlawful discrimination can be made to HREOC. Complaints may also be made to HREOC on a representative basis. The President of HREOC is responsible for inquiring into the complaint.
Where the parties are not willing to conciliate or conciliation is unsuccessful, the complainant can apply to the Federal Court or the Federal Magistrates Court to have the complaint heard and determined. Both courts encourage parties to resolve their disputes in appropriate cases through counselling, mediation or other alternative dispute resolution methods. Both courts are able to make a wide range of orders if they are satisfied that there has been unlawful discrimination (including an order requiring the payment of damages or an order requiring the performance of a reasonable act). A respondent to a complaint is required to comply with any order of the court.
Any discrimination issues not covered by the Standards remain subject to the provisions of the DDA.
Education providers can also establish their own alternative grievance or complaint resolution procedures.
Liability for acts by employees or agents
Under Section 123 of the DDA, an education provider is liable for unlawful conduct by the provider's employees or agents unless the provider can establish that it took reasonable precautions and exercised due diligence to avoid the unlawful conduct. This includes instances where employees or agents of a provider fail to comply with the Standards. In such cases, the education provider bears the onus of demonstrating that reasonable precautions had been taken and due diligence has been exercised.
The DDA does not define due diligence or reasonable precautions . However, the guidance notes recommend consideration of the following elements of an effective strategy:
- making all relevant staff aware of the need to avoid discrimination. This might include issuing a formal policy statement on compliance with the DDA and the Standards and more direct advice to staff;
- taking reasonable measures to ensure that staff have sufficient information and expertise concerning non-discriminatory methods of service delivery. This may include the provision of formal training;
- establishing or using and promoting existing complaint procedures in relation to discrimination;
- ensuring that complaints are properly and effectively dealt with; and
- implementing other reasonably available monitoring strategies, additional to complaint mechanisms, including internal monitoring through supervisory and management responsibilities and external monitoring through customer reference groups.
Review of the Standards
Part 11 of the Standards provides for a review of the Standards every five years to determine whether the Standards continue to be effective and remain the most efficient mechanism for achieving the objects of the DDA.
The review will determine:
- whether discrimination has been removed, as far as possible, according to the requirements for compliance with the DDA;
- whether the Standards continue to be compatible with contemporary practices in education and training; and
- if any amendments are required to ensure the effectiveness of the Standards including those to ensure the Standards are compatible with contemporary practices in education and training.
I do not think the Disability Standards for Education should be either feared or excessively celebrated as something that will create a revolution overnight.
As I said earlier they are intended for the much more practical purpose of filling in the details of rights and responsibilities which have been in place under the DDA for nearly 13 years, and much longer than that in State legislation in a number of cases including here in Victoria .
There is, though, a real revolution that has been going on: the movement towards a society that really includes its members who have a disability, and in particular that affords people with disabilities better opportunities in education.
This is not a process being unilaterally imposed by the Disability Standards or by legislation. It is a process that students, parents and educators have, in different ways and sometimes to different degrees, been working on together over the last 20 years or more. I hope that the new Standards will perform their intended role in assisting everyone to carry that process forward.