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Tuesday, 8 February 2005
Page: 97

Senator CARR (6:35 PM) —The Disability Discrimination Amendment (Education Standards) Bill 2004 [2005] amends the Disability Discrimination Act 1992 to ensure that the provisions of the draft disability standards for education are fully supported by the act. Labor supports this bill, which is the next step towards what, in my view, is the long overdue implementation of the disability standards for education. The bill amends the act to support the draft education standards in a number of ways. The bill introduces and defines the term ‘educational provider’, which is broader in this particular bill than the pre-existing definitions covering educational institutions and authorities.

The bill will make it unlawful for education providers to discriminate on the grounds of disability in the development or the accreditation of curricula or in training courses. It also includes a provision that educational providers may be required to develop strategies and programs to prevent the harassment and victimisation of students with disabilities. The bill extends the definitions of the defence in education, the so-called unjustifiable hardship provisions, to post-enrolment situations. While this extension of the unjustifiable hardship provisions has caused some concern, nonetheless Labor will support the provisions in the bill insofar as it supports the Human Rights and Equal Opportunity Commission’s and the Productivity Commission’s assessment that the amendment will remove a source of inconsistency and confusion in the current act. I will return to this matter in a little while.

Section 31 of the Disability Discrimination Act provides that the Attorney-General may formulate standards in relation to a number of areas covered by the DDA, including the education of people with a disability. The bill clarifies that disability standards made under section 31 may require reasonable adjustments to be made in order to avoid unlawful discrimination on the grounds of disability. The government has released a final draft of the standards which is intended to clarify and elaborate upon the obligations of education and training providers in relation to students with disabilities. I understand that the government intends to table these standards in parliament following passage of this bill.

I feel particularly strongly about these matters. I have had the opportunity to discuss these issues in this parliament for some time. In fact, in 2002 I chaired the Senate Employment, Workplace Relations and Education References Committee inquiry into the education of students with disabilities. The committee produced a bipartisan report and its recommendations were unanimously supported by all members of that committee. The key message then, and it remains the key message today, is that social justice demands that students with disabilities have equal access to education. As the committee stated in its report:

This is a human rights issue of considerable significance.

In 2002, the committee expressed its disappointment at the failure of the Ministerial Council on Education, Employment, Training and Youth Affairs, MCEETYA, to finalise the Disability Standards for Education at its July 2002 meeting. Work on these standards has been under way since 1995—that is, since before the current government came into existence. Stakeholders have already been involved in two consultation processes—back in 1997 and 2000. It was the committee’s view that the inability to finalise these standards in a timely manner represented:

... a failure at the national level to recognise the paramount issue of equity in the provision of services to those with disabilities.

In my judgment, this failure makes a mockery of the Adelaide Declaration on the National Goals for Schooling in the 21st Century. This is held up in many quarters, particularly within government, as being a declaration of principle which asserts that schools should develop fully the talents and capacities of all students—I emphasise the words ‘all students’. The national goals explicitly state:

Schooling should be socially just, so that students’ outcomes from schooling are free from the effects of negative forms of discrimination based on sex, language, culture and ethnicity, religion or disability; and of differences arising from students’ socio-economic background or geographic location.

Frankly, if we have a situation in this country where students with a disability are not able to fully develop their talents and capacities, then quite clearly we are failing to meet those grand principles.

In 2003, all state and territory members of the Ministerial Council on Education, Employment, Training and Youth Affairs, with the exception of Tasmania and the Australian Capital Territory, voted against the Commonwealth’s move to introduce the standards. While all the states and territories said they agreed with the content and intent, they were not prepared to move forward unless the Commonwealth agreed to share the costs of implementation which some considered to be significant. Given this apparent deadlock, it is pleasing to see that the Commonwealth has finally taken legislative action to support the Disability Standards for Education. In fact, that was the recommendation of the 2002 Senate inquiry. It is important on issues such as this that the Commonwealth in fact raises the bar. Just as commentators agree that the role of school principals appears to be crucial in establishing and maintaining a climate of inclusion in education, so the role of the Commonwealth government should be to provide leadership at a national policy level on these fundamental social justice questions.

The education standards must now be implemented as quickly as possible to ensure improved access for students with disabilities. There is strong support in the disability sector for the standards to be introduced. Importantly, implementation of the standards will reduce the need for parents to participate in highly stressful complaints and legal actions to ensure that their children are not discriminated against in education.

Looking at these issues in detail, we see that the issues addressed in this bill, like those addressed in the existing act, are in fact very serious. One of these issues that was drawn clearly to the attention of the committee during the 2002 inquiry was the importance of definitions. During this inquiry, the emphasis on definitions became apparent because, frankly, the principles of the definition of disability provide a situation where education providers and education access is in fact established. The definition issues are not just fodder for bureaucratic arguments, they have a genuine impact on the rights of people with disabilities and their capacity to have access to the services that they need.

In 2002, the Senate committee report highlighted that much of the definition of a disability or even whether a disability is defined at all hangs on this principle. The report said:

Depending on the scope of the definition, rights are protected; funds are allocated; research commissioned, and policy evaluated. The definition of disability becomes particularly important when it provides a mechanism to compete for funds.

A fairly narrow definition of disability tends to be applied when allocating funds for the support of students with disabilities. The committee found that the group of students with disabilities which attracts funding support has not kept pace with the advances in diagnosis and the potential for students requiring additional support.

Among other findings, in relation to the definition of disability the committee found that:

... the Commonwealth definition of disability for the purposes of additional per capita funding, are narrower than the definition of disability under the Disability Discrimination Act 1992.

The report stated:

The evidence suggests, however, that in supporting the education of students with disabilities, the Commonwealth has given scant regard to the obligations imposed on education authorities since the introduction of the Commonwealth’s anti-discrimination legislation:

Some of the submissions to the inquiry raised concerns with proposed subsection 22(4), which would extend the defence of unjustifiable hardship in education to post-enrolment situations. Some parents expressed concern, and many advocates supported them, in relation to this provision, which is understandable. The record of non-government schools in citing unjustifiable hardship as a reason not to enrol students with disabilities is not a particularly good one. Finney v Hills Grammar School was a particularly well publicised case—it led to considerable litigation—and was one which the non-government sector had expressed concerns about. The school was found to have discriminated against a girl with spina bifida. There are other cases that follow a similar pattern. It is something of a concern that non-government schools may use the extension of the unjustifiable hardship provisions to avoid their responsibilities in relation to students who are enrolled prior to the onset of a disability or whose needs change.

Related to this is the risk that the extension of the unjustifiable hardship provisions will exacerbate the double standards that already exist between government and non-government schools in the way in which their obligations to students with disabilities are expressed. Time will tell. I can only hope that the introduction of the disability standards for education, which will apply equally to both government and non-government sectors, will provide greater certainty for parents and students in terms of what their school will be required to do to support them.

I would like to emphasise that Labor support the implementation of the disability standards for education. However, we are somewhat disappointed that the Commonwealth has refused to accept any of the real financial responsibilities for the implementation of these new standards. Labor understand the concerns of many states that the costs involved in the implementation of these new standards will fall heavily on them in the absence of any serious financial commitment from the Commonwealth. It is particularly disappointing that the government has chosen to ignore the further recommendations of the 2002 inquiry. The recommendations were unanimously supported by the committee, which asserted that the costs of implementing the standards should be shared between the Commonwealth, states and territories. The inquiry found:

The Disability Discrimination Act gives a new responsibility to the Commonwealth government. To ensure the objectives of the Act are achieved, the committee agrees that the Commonwealth will have to accept a level of financial responsibility for the implementation of the education standards ... Such funding would be over and above those funds currently provided to state governments for the education of students with disabilities.

The reference committee considering this bill was advised:

The Minister for Education, Science and Training will contribute to the development of professional development materials ...

However, professional development involves a lot more than just materials. Indeed, the fact that this small element has been identified for the Commonwealth’s attention simply highlights the government’s lack of willingness to provide comprehensive support for the implementation of the standards. I argue that, in relation to professional development, the Commonwealth does have a key responsibility in the existing administrative arrangements. The Commonwealth has in the past acknowledged that responsibility. The Senate committee that looked at these matters in 2002 found that there was already a training deficit that needed to be urgently addressed and that an attitudinal change to professional development was long overdue. The committee took the view that effective professional development in the area of disabilities required programs to be properly structured and sustained over a period of time. As the report states:

Quality professional development comes at a cost.

The committee also expressed a concern about the evidence it received, which pointed to a shortfall and which might be called the attitudinal budget. It noted that it was indicative of a problem more serious than the shortage of resources for disability education per se.

Debate interrupted.