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Disability Discrimination Amendment (Education Standards) Bill 2004

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2002-2003-2004

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

DISABILITY DISCRIMINATION AMENDMENT (EDUCATION STANDARDS) BILL 2004

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock, MP)

 

 



DISABILITY DISCRIMINATION AMENDMENT

(EDUCATION STANDARDS) BILL 2004

 

OUTLINE

 

The Disability Discrimination Amendment (Education Standards) Bill, as introduced, amends the Disability Discrimination Act 1992 (the Act) in order to ensure that the provisions of the draft Disability Standards for Education (the draft Education Standards) are fully supported by the Act. The Attorney-General and the Minister for Education, Science and Training have released a final draft of the Education Standards, which are intended to clarify and elaborate the obligations of education and training providers in relation to students with disabilities under the Act. The Government intends that the Attorney-General will formulate and table the draft Education Standards in Parliament immediately following passage of this Bill.

 

The Act seeks to eliminate, as far as possible, discrimination on the ground of disability. Section 22 of the Act prohibits discrimination on the ground of disability in relation to education. While the Act prohibits discrimination in very general terms, it does not provide precise guidance on what is required for compliance.

 

Section 31 provides for disability standards to be formulated in a number of areas, including the education of persons with a disability. The purpose of disability standards is to clarify and elaborate the obligations in the Act. The draft Education Standards set out the obligations of education and training providers under the Act in relation to the education of students with disabilities, and provide guidance on how these obligations can be met.

 

It is unlawful to contravene a disability standard made under section 31 of the Act. While a breach of a disability standard may give rise to a complaint under the Act, compliance with a disability standard is a complete defence to a complaint made under the Act’s general provisions.

 

The draft Education Standards have been developed over a number of years, in close consultation with education and disability sector representatives, as well as representatives of the States and Territories. Once in effect, the draft Education Standards will be reviewed at regular intervals to ensure that they remain the most efficient and effective mechanism for achieving the objects of the Act in the area of education.

 

The Bill amends the Act to support the draft Education Standards by:

 

-       introducing and defining the term ‘education provider’   

-       providing that it is unlawful for ‘education providers’ to discriminate on the ground of disability in the development or accreditation of curricula or training courses

-       providing that education providers may be required to develop strategies and programs to prevent the harassment and victimisation of students with disabilities

-       extending the defence of ‘unjustifiable hardship’ in education to post-enrolment situations, and

-       clarifying that disability standards made under section 31 may require reasonable adjustments to be made in order to avoid unlawful discrimination on the ground of disability.

 

The purpose of this Bill is to amend the Act in these minor areas to ensure that the draft Education Standards are fully supported by the Act, so they can be formulated by the Attorney-General as soon as possible, to improve the position of people with disabilities in the area of education and training. 

 

Financial impact statement

 

It is not anticipated that the passage of this Bill will have any financial impact.

 

 

 



NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.         The Act, once enacted, may be cited as the Disability Discrimination Amendment (Education Standards) Act 2004

 

Clause 2: Commencement

 

2.         This clause provides that the provisions of the Act commence in accordance with the table provided. The table provides that Sections 1, 2 and 3 commence on Royal Assent. The provisions in Schedule 1 commence on a single day to be fixed by Proclamation. This is intended to allow the amendments to commence at the same time as the draft Education Standards. In accordance with usual practice, if they do not commence within 6 months of Royal Assent, they commence on the first day after the end of that 6-month period.

 

Clause 3: Schedule(s)

 

3.         The Disability Discrimination Act 1992 is amended as set out in Schedule 1 to the Bill.

 

SCHEDULE 1

 

Item 1 - Subsection 4(1)

 

The draft Education Standards employ the general term ‘education provider’ to describe educational authorities, educational institutions and organisations whose purpose is to develop or accredit curricula or training courses. However this term is not currently used nor defined in the Act.

 

When proclaimed, this item will introduce a definition of ‘education provider’ to subsection 4(1) of the Disability Discrimination Act 1992 (‘Interpretation’). The term ‘education provider’ will be defined to include an ‘educational authority’ and an ‘educational institution’, both of which are already defined, as well as an ‘organisation whose purpose is to develop or accredit curricula or training courses used by other education providers’.



Education providers will have obligations under section 22 of the Act, and are also referred to in section 31.

 

Item 2 - After subsection 22(2)

 

The draft Education Standards oblige education providers to avoid discriminating on the ground of disability in relation to all aspects of education, including enrolment, participation, curriculum development and accreditation, student support services and the elimination of harassment and victimisation. However section 22 currently does not place obligations on the activities of organisations whose purpose is to develop or accredit curricula, training packages or courses which are delivered by other bodies.

 

This item will insert a new subsection 22(2A) into the Act, to provide that it is unlawful for education providers to discriminate against persons on the ground of disability by developing or accrediting curricula or training courses that will exclude them from participation, or otherwise subject them to detriment.

 

Item 3 - Subsection 22(4)

 

Subsection 22(4) of the Act currently limits the ‘unjustifiable hardship’ defence to refusing or failing to accept a person’s application for admission as a student. There is currently no defence on which an education provider can rely after it has enrolled a student with a disability. The draft Education Standards extend the defence of unjustifiable hardship to all areas of education, including enrolment, participation, curriculum development and accreditation and student support services .

 

This item will replace the existing text of subsection 22(4) of the Act with text which extends the ‘unjustifiable hardship’ defence to all the elements of education described in subsections (1), (2) and (2A) of section 22.

 

‘Unjustifiable hardship’ is defined in section 11 of the Act, which provides that it is to be determined on the basis of all relevant circumstances of the particular case, including those listed in section 11.

 

The draft Education Standards require education providers to develop and implement strategies and programs to prevent harassment and victimisation of a student with a disability, or of a student who has an associate with a disability, in relation to the disability. Subsection 22(4) does not extend the defence of unjustifiable hardship to the development of these strategies and programs.

 

Item 4 - After subsection 31(1)

 

The draft Education Standards require education providers to undertake a process to consult with the student as to whether any adjustments are necessary to enable them to participate in education on the same basis as students without the disability, and to identify and make any reasonable adjustments that may be necessary, unless this would cause unjustifiable hardship.

 

The draft Education Standards also place an obligation on education providers to develop and implement strategies and programs to prevent harassment or victimisation of a student with a disability, or of a student who has an associate with a disability, including by other students. They also require education providers to take reasonable steps to ensure that staff and students are informed about the obligation not to harass or victimise students on the ground of disability, and the appropriate action to be taken should such harassment or victimisation occur.

 

This item will amend section 31 of the Act in order to ensure that these provisions are within power.

 

New subsection 31(1A) will clarify that disability standards made under this section may require the provision of reasonable adjustments in order to eliminate discrimination against persons with disabilities.

 

This item will also add a provision to provide that disability standards in the area of education may require education providers to develop strategies and programs that prevent harassment or victimisation of persons with disabilities on the ground of disability.

 

Currently, provisions in Divisions 3 and 4 of Part 2 of the Act provide that harassment and victimisation of students and potential students on the ground of disability are unlawful. These provisions in the Act are not amended by either these amendments or the draft Education Standards.

 

However, the Act does not explicitly require the development of strategies and programs to eliminate harassment or victimisation on the ground of disability. New subsection 31(1B) provides that disability standards in relation to the education of persons with disabilities may require education providers to develop such strategies and programs.

 

To avoid doubt, new subsection 31(1C) will also clarify that education providers may not be excused from complying with a requirement in disability standards for education to develop and implement strategies and programs that prevent harassment or victimisation of students with disabilities on the ground of unjustifiable hardship.