Bills Digest No. 49, 2004–05
Disability Discrimination Amendment (Education Standards) Bill
2004
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Disability Discrimination
Amendment (Education Standards) Bill 2004
Date Introduced: 17 November 2004
House: Senate
Portfolio: Attorney-General
Commencement: The
formal provisions commence on Royal Assent. The substantive provisions
commence on Proclamation or, if this does not occur within six months
of Royal Assent, the first day after that period.
To amend the Disability Discrimination Act 1992
(DDA) to enable the introduction of Disability ‘Standards’ for Education.
The DDA provides for the formulation of standards in section 31. This
section covers a range of areas for which standards can be formulated:
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Transport
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Education
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Employment
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Accommodation
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Administration of Commonwealth Government Laws & Programs, and
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Access to Public Buildings (added following an amendment to the
DDA on September 23, 1999).
There are already standards governing Public Transport and the draft
standards for Access to Premises were released earlier this year.
Standards made under section 31 are essentially delegated or subordinate
legislation, made on the basis that Parliament cannot be expected to legislate
for the minutiae of government and there will be many aspects of the standards
which must be changed regularly or which need detailed consideration not
amenable to parliamentary enactment.
Standards are designed to deal with systemic discrimination without the
need to resort to proving discrimination through a complaints based process
under the Human Rights and Equal Opportunity Commission ('HREOC'). Given
that section 32 makes it unlawful not to comply with standards in force,
the need for a victim to take a case to HREOC regarding discrimination
they have experienced may be short-circuited. The use of standards in
the DDA represents an innovative approach to anti-discrimination measures
in Australia.
The current Bill is designed to clear the way for the introduction of
standards in the area of education. It makes some modifications to the
DDA which the Government feels are necessary before the Disability Standards
for Education can be introduced. According to the Joint Media Release
from the Attorney-General and the Minister for Education, Science and
Training ‘[t]he Disability Standards for Education will be formulated
and tabled when the Bill passes the Parliament.’(1)
The Disability Standards for Education (the Standards) have been developed
after a fairly lengthy process, starting in 1995 with the formulation
of the DDA Standards Project (an advisory body composed of disability
interest groups) which, through the relevant Ministers, prompted the involvement
of the Ministerial Council on Education, Employment, Training and Youth
Affairs (MCEETYA), which established a Taskforce to oversee the developments
of appropriate standards. Various processes continued until more recently
there was a paper commissioned by the Department of Education, Science
and Training (DEST). The paper was developed at the behest of the Australian
Education Systems Officials Committee (AESOC), which used an independent
consultant to examine the issue of the costs of implementing the Standards.
This paper, The Net Impact of the Introduction of the Disability Standards
for Education, was published by the Allen Consulting Group in June
2003 (who also noted the ‘report was prepared in a very short time-frame
and is heavily reliant on written and verbal information provided by key
stakeholders’).(2) The Productivity Commission has also recently
produced a Report on the costs and benefits of the DDA (the Review
of the Disability Discrimination Act 1992) which the Government believes
supports the need for standards. (3)
In July 2003 the Minister for Education, Science and Training, Dr Brendan
Nelson MP, issued a Media Release announcing the Government’s intention
to move unilaterally to implement the Disability Standards for Education.
The Disability Discrimination Amendment (Education Standards) Bill was
introduced into Parliament on 12 August 2004, but lapsed when the election
was called. This Bill is in identical form.
The DDA gives legislative authority to issue standards to the Commonwealth
Attorney-General. The involvement of the various State and Territory
educational authorities through MCEETYA involved additional consultation
beyond that required by the DDA’s legislative framework, but seems to
have struck problems. Some of the States and Territories had expressed
concerns at the financial implications of the Standards (only Tasmania
and the ACT were supportive of the Commonwealth’s proposals). Dr Nelson
commented that the States and Territories had ‘wildly different assessments
of the impact on their budgets of implementing the standards’.(4)
The independent report by the Allen Consulting Group assembled the various
costings and commented on the various differences. It noted that only
reasonable adjustments are needed to comply with both the DDA and
the proposed Standards. An educational provider can be exempt from making
an adjustment where it is proven that such an adjustment would cause unjustifiable
hardship. Nevertheless the quantum and scope of cost estimates provided
differed significantly and ‘were influenced by providers’ interpretation
of their obligations under the measures outlined in the Standards.’(5)
The Report also noted that the costs provided by educational providers
appeared to have blurred costs which are one-off and those which may be
ongoing. Furthermore the estimates were often prepared with different
timing bases and used different assumptions as to the estimated number
of students with disabilities. This all meant that any effort to achieve
a comprehensive overview of costs was fraught, and that a focus on the
requirements of the DDA itself needs to be taken into account. The notable
feature of the Standards is that, legally speaking, they do not expand
requirements already in place under the legislation, they simply systematise
and clarify them. Nevertheless the Report was clear that their introduction
would involve some additional costs to education providers.
After Dr Nelson’s declaration that he would act unilaterally regarding
the Standards, Members of the Disability Discrimination Act Standards
Project applauded Dr Nelson’s leadership, saying
We are disappointed that some of the States and Territories
attempted to once again delay the introduction of the Education Standards.
To our delight, the Commonwealth Minister, Dr Brendan Nelson,
has exercised his leadership. Dr Nelson recognises that after seven and
half years of development, the Education Standards are now in agreement,
and that legal and financial concerns have been resolved through independent
inquiry.(6)
The Allen Consulting Group identified education providers’ concerns that
there will be increased associated costs with the Standards. They believe
that while the Standards may not legally expand the requirements of the
DDA they change the nature of the enforcement from having been ‘passive’
to requiring active compliance. The Standards may also increase the number
of students (and their guardians) expecting to receive services. It follows
that increasing the awareness of the DDA’s provisions and highlighting
how they apply to education will probably mean that more people with a
disability are made aware of their rights and seek to utilise them. The
Allen Group Report also identified the fact that the definition of ‘disability’
used in the DDA is broader than many definitions used elsewhere by the
Commonwealth, including the criteria for funding grants being made to
cater for the needs of those with ‘disabilities’.
Wendy Currie, a Research Officer with the NSW Teachers Federation, has
commented that while the Standards set out definitions and requirements
they don’t ‘make it clear whose responsibility it is to ensure compliance:
the school, the system or the state government.’ She also expressed a
concern that 80 per cent of the money set aside in the Federal Budget
for implementation of the Standards went to private schools.(7)
As stated above, it is legally clear that the Standards do not change
the Act. The Standards subsist within the framework of the legislation
and can neither expand nor contract the coverage of the Act. However
the concerns raised by ‘education providers’ as identified in the Allen
Consulting Group’s study do identify concerns with how the funding of
the impact of the Standards will occur. The concern with the different
definitions of disability in use raises questions of who is responsible
for funding any necessary changes (and under which definition of disability
they are operating).
In contradistinction to the proposed Standards the current Bill does
in fact modify the Act itself. These changes are mostly clarificatory
and indeed can actually serve to exempt education providers from the possible
effects of the Standards. The spokesperson for the DDA Standards Project
argues that by extending the current ‘unjustifiable hardship’ provisions
(at the moment the unjustifiable hardship provisions in the area of education
only apply to enrolment), this Bill will, if anything, financially benefit
education providers by widening the potential ‘defence’. The Allen Consulting
Group expressed hesitation with respect to this logic, but do confirm
that some smaller schools might find a benefit. They also assert that
there are costs associated with the Standards but that the costs will
be outweighed by the benefits.
Item 1 of Schedule 1 introduces a new definition of ‘education provider’
which is broader than the pre-existing definitions which cover educational
authorities and educational institutions. Under the Bill an ‘education
provider’ will encompass both the first two definitions and also bodies
which develop or accredit curricula or training courses.
Item 2 extends the existing definition of discrimination in education
to encompass the creation or accrediting of curricula or training courses
which exclude those with a disability (or those associating with someone
with a disability). This extension is in a sense offset by the introduction
of a new ‘unjustifiable hardship’ provision in Item 3. The new subsection
introduced in Item 3 confirms the Act’s pre-existing approach and ensures
that educational providers do not have to avoid discrimination in education
when it would impose an unjustifiable hardship to do so.
Finally Item 4 introduces some clarificatory provisions into section
31. These amendments clarify that ‘reasonable adjustments’ must be made
in order to comply with standards and avoid disability discrimination.
It also introduces provisions which allow the Standards to require that
education providers develop strategies and programs to stop harassment
or victimisation of the disabled, along with provisions which clarify
that such requirements for training are not subject to the ‘unjustifiable
hardship’ provisions.
Concluding Comments
Since the announcement by Dr Nelson that the Commonwealth would proceed
with the Disability Standards for Education there does not seem to have
been a great deal of public comment by interested bodies. It seems that
the major concerns with the Standards and this associated Bill are more
to do with questions of funding than they are to do with the principles
of the issues. The Allen Consulting Group was clear in their Report that
a staged introduction process would go some way towards alleviating such
funding problems, and also highlighted the economic and other benefits
associated with increasing education levels amongst the disabled population.(8)
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The Hon Dr Brendan Nelson MP, Minister For Education, Science And
Training and the Hon Philip Ruddock MP, Attorney-General, ‘Government
Acts on Discrimination Against Students With Disabilities’, News Release,
17 November 2004.
The Report is available from the DEST website at http://www.dest.gov.au/Research/docs/july_03/DDA_Standards.pdf
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This account of the historical developments is taken from a number
of sources, but draws heavily from the Regulation Impact Statement
prepared jointly by the Department of Education, Science and Training
and the Attorney-General’s Department.
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Review of the Disability Discrimination Act 1992, Report No.30,
Productivity Commission Inquiry Report, July 2004.
http://www.pc.gov.au/inquiry/dda/finalreport/index.html
- Dr Brendan Nelson MP, Minister for Education, Science and Training,
‘Most State And Territory Education Ministers Vote Against Disability
Standards’, Media Release, 11 July, 2003 MINCO 7/03, http://www.dest.gov.au/ministers/nelson/jul_03/minco703.htm
The Net Impact of the Introduction of the Disability Standards
for Education, The Allen Consulting Group, June 2003, pp. 5 &
7.
http://www.dest.gov.au/Research/docs/july_03/DDA_Standards.pdf
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Disability Discrimination Act Standards Project, ‘DDA Standards will
be law’, Media Release, 11 July 2003,
http://members.ozemail.com.au/~ddasp/Media%20Releasesdda703.htm
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Wendy Currie, ‘Impact of disability standards is unknown’, Education,
vol 85, No 7, 9 August 2004, p. 10.
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The Allen Consulting Group, The Net Impact of the Introduction
of the Disability Standards for Education, June 2003. See chapter
5 on the benefits of the changes generally and chapter 6 and its conclusions
on the wisdom of approaching the matter slowly, NB p. 58.
http://www.dest.gov.au/Research/docs/july_03/DDA_Standards.pdf
Kirsty Magarey
29 Novemeber 2004
Bills Digest Service
Information and Research Services
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using information available at the time of production. The views expressed
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nor do they constitute professional legal opinion.
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ISSN 1328-8091
© Commonwealth of Australia 2004
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