Opportunity knocks: Workers with a disability
University of Southern Queensland, Toowoomba
Dr Sev Ozdowski OAM
Acknowledgments and introduction
Professor Bill Lovegrove Vice Chancellor
Senior Management of USQ
Members of the Disability Advisory Committee
Allow me to begin by acknowledging 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.
Some of us are women and some are men; some of us brought new names and accents in recent decades and some of us have Australian ancestry reaching back tens of thousands of years; and some of us have one or more disabilities.
Well known Australian Bureau of Statistics figures tell us that around 20% of Australia ' s people have some level of disability. More fine-grained and more recent analysis indicates that the numbers are likely to be substantially larger - considering evidence that either of the categories of hearing impairment or mental health issues affect 20% of our population just by themselves.
I particularly want to emphasise mental health issues here - because it seems to me that very often people with mental health problems get left out of the picture even among those of us talking about disability.
As well as the 20 per cent plus who have a disability, another eight per cent of the community act as carers for family or friends with disabilities on daily basis.
We also know that all these numbers are growing and will grow further as our population ages.
When you look at these statistics it is remarkable to think that for so long people with disabilities were pushed to the margins, or not thought of at all in major social decisions.
We built disabling environments even in our buildings and streetscapes; in our systems for public transport, education, communications, and even political participation.
Social environments have also been disabling because we have not had the supports in place to enable people with intellectual or psychiatric disabilities to live effectively in the community and participate equally in community life.
Academic discussion of disability now emphasises that disability is not simply a matter of individual pathology, of injury or deficit, but is a matter of how the physical and social environment is constructed.
Sometimes the way this discussion is presented can sound a bit trendy, left wing and unrealistic.
But really it reflects the same understanding as that now entrenched in the law of the land, through the Disability Discrimination Act and equivalent State and Territory laws, that we need to change our physical and information and social environments so that they do not have unnecessarily disabling results.
The role of discrimination law
Because exclusion or overlooking of people with disabilities has been deeply built into many aspects of the way our society works, building an inclusive and equal society presents large scale and long term tasks - in changing laws and policies and programs and also in changing attitudes and expectations.
This reform agenda is not one which can be implemented simply by passing laws.
Still, it is clear that laws against discrimination have been an important part of the changes in Australian society over the last few decades.
In the early 1980s, States which already had anti-discrimination legislation, covering grounds such as race and sex discrimination, began adding coverage of disability. This was largely in response to community activism around the International Year of Disabled Person in 1981.
At the Federal level in 1992 the Disability Discrimination Act was passed.
HREOC ' s website information seeks to explain the law in simple and non-technical terms, as well as providing responses to complex and technical questions. Simple suggestions and complex questions are equally welcome to help us do better in presenting and promoting the law.
But I expect that you are already familiar with the basics about the DDA, and that, like me, you are more interested in how to implement equality and take advantage of diversity in practice than in discussion of discrimination law for its own sake.
For today ' s discussion, perhaps it is enough to emphasise that the DDA defines both discrimination and disability in very general terms.
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 concept of discrimination includes both direct and indirect discrimination, subject in both cases to the important limitation that distinctions based on the inherent requirements of the job are not unlawful.
The DDA encompasses, although it does not yet explicitly spell out, a requirement to make reasonable adjustments to remove features of the workplace which have discriminatory effects.
Including an express duty to make reasonable adjustments in the DDA, as the Government decided earlier this year to do in response to the Productivity Commission's review of the legislation, will provide helpful clarification in this area.
Disability is defined very broadly, to include physical, intellectual, sensory, or psychiatric disabilities; disabilities that are permanent, episodic or temporary.
Whether a person's disability is severe, moderate or apparently trivial, discrimination on the basis of that disability is covered by the DDA.
Different features of the DDA
There are a number of differences between the Disability Discrimination Act and other federal anti-discrimination laws - the Racial Discrimination Act, the Sex Discrimination Act and the recent Age Discrimination Act.
Unjustifiable hardship defence
In recognition of the fact that eliminating disability discrimination can sometimes be more difficult and expensive than eliminating other areas of discrimination, the DDA provides a defence of "unjustifiable hardship".
The DDA also has a power for the Human Rights and Equal Opportunity Commission to grant temporary exemptions, for up to five years at a time, to help in managing the transition to equal and accessible systems and facilities.
The Sex Discrimination Act contains a similar power, but it has had a more important and positive role within the DDA, in managing broad social change.
People seeking to build accessible transport systems, or information and communications facilities, or buildings, need more to guide them than a general obligation not to discriminate. It is a far more complex business than eliminating sexual harassment for example - not that that has proved easy either, but where in the end the message is a fairly simple one: Just don't do it.
So, in recognition of the different context provided by disability discrimination and the more complex and long range tasks in eliminating it, the DDA provides for development of standards.
Standards are made by the Attorney-General. Once they are approved by the Federal Parliament they apply nationally.
Compliance with a standard is a complete defence to complaints under the general anti-discrimination provisions of the DDA.
Early in the life of the DDA there was some community concern about standards as being wrong in principle, as taking away people's rights to pursue individualised outcomes through the complaint process under general anti-discrimination provisions.
This general concern about standards displacing rights under general anti-discrimination provisions has largely dissipated as people have seen the results achieved through the transport standards: and through the exemption and action plan processes which led to them.
Governments and infrastructure providers are clearly prepared to do more if they can have some certainty about what is required to achieve compliance with their obligations. My predecessor as Commissioner, Elizabeth Hastings, was saying exactly this back in the 1990s, and we have been proved right.
Disability community concern now, rightly, focuses not on opposition to standards per se, but on what the content of standards should be.
In the area of building standards there is intense debate as we enter what are hopefully the final stages of development of a disability standard on access to premises.
I say hopefully, because this process has been running since 1996.
The debate now is about what exceptions should be provided to access requirements affecting small business, particularly in 2 and 3 storey buildings.
Issues of expense to industry are real and need to be taken seriously. On the other hand, of course, in suburban and regional Australia these buildings constitute most of the building stock, where people are employed and services are provided.
I have been arguing that any exceptions need to be as narrowly targeted as possible, to avoid excluding people unnecessarily from access to services and from employment opportunities, particularly in regional areas. I recently published on our website some views on the impact of the draft building standards on small business if you are interested in looking at those.
The stakes are high, since the point of standards is that they are not just guidelines. They will define conclusively what access people are and are not entitled to expect.
But I remain confident that the standards will move access forward from where we are now.
Even if the standards do provide that small 2 and 3 storey buildings in general need not be accessible, there are likely to be separate provisions for some situations where an exemption is less justified. One obvious area of this kind would be premises used for administration of government programs.
In my view also, there does need to be more consideration thoughout government of requirements in contracts to ensure that accessibility is delivered and that government provides real leadership in inclusive employment and service delivery.
Recognition of other codes and standards
The process of developing standards under the DDA itself is not the only possible means of giving certainty on what rights and obligations mean and how they should be implemented.
In response to a review of the DDA by the Productivity Commission, the Government decided early this year that the Human Rights and Equal Opportunity Commission should have power to certify other codes or standards for the purpose of compliance with the DDA.
We have been asked to provide Government with views on how this might be implemented, and we will be doing that in the near future.
Standards to be recognised under such a function could include codes developed by industry bodies; or by joint industry/consumer bodies. It could also include standards developed by other regulatory bodies.
Potentially, it might include recognition of international standards (such as the World Wide Web Consortium guidelines on accessible websites) or overseas standards (like those from the United States Access Board on accessible information and communications technology for the purposes of government procurement).
This is all for the future as it awaits discussion within the Commission and with Government, including on issues of what effect certification should have and what processes of consultation and assessment might be appropriate to include.
The other distinctive feature contained in the DDA but not in other Federal, or state, discrimination laws is the provision for voluntary development of action plans.
Who can lodge action plans
At present the DDA states that an Action Plan may be lodged by a "service provider".
The Government has accepted a recommendation from the Productivity Commission to amend this to clarify that action plans can be developed and registered by any organisation or person covered by the Act.
Voluntary strategies such as action plans can be very effective.
But the driving force for change through the DDA is often still the possibility of being found liable for unlawful discrimination through the complaint process.
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 .
HREOC will investigate any complaints received that are within its area of responsibility.
Where a complaint cannot be resolved by conciliation, a complainant who chooses to can go to the Federal Court or the Federal Magistrates Court for an enforceable ruling.
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.
Areas of achievement
In a number of areas the complaint process and the other mechanisms under the DDA which I have spoken about have worked well in moving forward the processes of social transformation needed to transform the experience of disability in Australia - in transport; telecommunications; and I would say also in education despite the distance there still may be to go to ensure full equality of opportunity in education.
Employment however is one of the areas where there has been least progress since the adoption of the DDA.
This is ironic since improving 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 a number of States including NSW - 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 are not achieving equal opportunity for millions of Australians with disabilities one complaint at a time.
Since 1993, the labour force participation rate of people with disabilities has fallen, while the rate for people without disabilities has risen.
In 2003, 53.2 per cent of people with disabilities participated in the labour force as compared to 80.6 per cent of those without a disability. The workplace participation rate for people with a psychiatric disability receiving disability support payments is only 29%.
Among people in the labour force - that is, working or looking for work - the unemployment rate for people with disabilities in 2003 was 8.65 compared to 5% for people without disabilities.
When employed, people with disabilities also earn lower wages, on average, than workers without disabilities.
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 final report is due to be published by the end of 2005.
The written submissions and consultations to this Inquiry have raised many different issues, concerns and ideas. This Interim Report does not attempt to comprehensively recount all of that information.
Rather, this Interim Report attempts to:
- group the issues raised in the submissions into common themes;
- select the issues within those themes that appear to be the most pressing; and
- develop an agenda for further research and action in the remainder of 2005.
The term ' people with disability ' covers people in a wide range of circumstances.
- Some disabilities are sensory (eg visual and hearing impairments), some relate to mobility, some are intellectual disabilities, some are mental illnesses and some are an acquired brain injury.
- Some disabilities are present at birth, some are the result of car and sporting accidents, some are acquired in the workplace, some are the result of illness.
- Some disabilities are severe, some are mild and other disabilities lie somewhere in between.
- Some disabilities are readily recognisable, others may be invisible until disclosed.
- Some disabilities are permanent, some are temporary, and some are episodic.
- Some need physical workplace accommodations, others do not. Some need on-the-job supports, others do not.
- People with disabilities have a wide variety of aptitudes and interests in work just as other members of the workforce do.
There is no single way to address the needs and concerns of this diverse group of people, but there are some unifying themes. This report focuses primarily on those common features.
However, where submissions have highlighted special needs of different groups, the Inquiry has tried to separate out those concerns. In particular, there were many submissions to the Inquiry that dealt with the special needs of people with mental illness, Deafness and hearing impairments, visual impairments and intellectual disability.
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.
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 have convened working groups of experts from government, employer organisations and the disability community. The agendas for these working groups are:
- Identifying 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.
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
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.
Universal design thinking is not only relevant to buildings and equipment, but also to how work is organised.
It seems increasingly clear that workplace flexibility can be important for a range of reasons some of which relate to disability.
One worker may need flexible working arrangements because of unpredictable and episodic impact of a mental illness.
Another may need the same flexibility because of unpredictability of when an accessible taxi will actually arrive, despite the improvements I have mentioned in transport access. Still another may need flexibility because of the unpredictable and episodic impact of responsibilities as a parent, as many of us here can perhaps confirm.
Our interim report recommends development of guidelines on flexible workplaces building on the work that has already been done on family friendly workplaces. We also recommend sharing of information from businesses who already have experience in creating flexible workplaces on what does and does not work.
Recruitment and support needs for people with mental illness
A large proportion of submissions to our Inquiry had a particular focus on mental illness.
It seems clear though that measures to address needs in this area should as far as possible avoid further stigmatising people with a mental illness as problem cases.
Adjustments made in the context of mental illness can have benefits for many other groups of people.
For example, a workplace that has flexible working hours will benefit people with mental illness, and people with multiple sclerosis, and HIV/AIDS.
As I have just noted it will also benefit working parents who have episodic demands on their time.
Similarly a workplace that ensures access to a mental health hotline will not only benefit those with a chronic mental illness, it can also benefit other employees who go through a stressful period during their lives.
In this area, just as in the physical environment and in access to communications, or education, or employment, we need action to transform the experience of disability, and recognise that disability really is a normal part of life, not something that should exclude people from the life of our nation.
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 - 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.
From employment to education
The reason I have spent some time talking about employment here, in a University setting where you might expect me to focus mainly on education, is not just because the 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.
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.
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.
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.
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, as well as under State legislation.
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.