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Wednesday, 9 February 2005
Page: 3

Senator GREIG (9:38 AM) —It is a very rare event that a bill seeking to constructively and positively address the imbalance experienced by people with disabilities comes before the Senate. We are much more used to seeing the government, particularly in recent years, introducing legislation in this place that tends to limit the income, reduce the support and add to the overall disadvantage faced by many people with a disability and by their carers. Sadly, we are likely to see more of that in coming months.

Rather than focusing on discrimination and other systemic barriers, the government continues to pursue a policy direction that can only punish those with a disability by effectively blaming them for their predicament. By restricting access to the disability support pension and forcing people with disabilities into the Job Network, and by limiting income and using coercion, the government seems to feel that it can ‘fix’ the people it sees as ‘bludgers with bad backs’—that is the perception. Never mind that many people with a disability and their carers are less competitive in the open market because of discriminatory employment practices, inflexible workplaces, restricted access to quality education, and particular needs which are often viewed by employers as little more than added hassle or extra cost. This is the approach we have come to recognise and expect from the government, and that is why, when a bill of this nature comes before the Senate, we should warmly welcome it and embrace it enthusiastically.

The education standards have taken a very long time to reach this threshold. It is well over 10 years since the Disability Discrimination Act came into effect and almost 10 years since the then Attorney-General requested that a range of standards be developed—the education standards being amongst them. In that time, only one group of standards—that relating to accessible public transport—has come into effect. Understandably, the repeated delays have been the subject of some criticism, and we Democrats have shared that frustration to some small extent. Nine years is a very long time in anyone’s estimation. This is especially so for people who have lacked suitable information about what their right to an accessible education actually means and for education providers who, uncertain about their obligations, have faced the possibility of discrimination complaints being made against them.

While it has taken some time to get to this point, the standards development process has facilitated a great deal of fruitful discussion about accessible education for people with disabilities, and we have moved forward as a community. Along with the Senate inquiry into the education of students with a disability, the report having been tabled in 2002, and the Productivity Commission’s review of the DDA, the report having been tabled in 2004, we now have a much clearer picture of education access issues for people with a disability than at any previous time. As a result, there have been many improvements in the education experience of people with disabilities in the years since the DDA was introduced. According to the Productivity Commission’s report, the number of students with a disability who are attending mainstream government, Catholic and other non-government schools has increased, and more are participating in higher education. These same students are also attaining higher levels of education, with more completing secondary school and further education. However, these improvements have not been uniform across all education sectors or for people with different and multiple disabilities.

While many students with disabilities are staying in education longer, they are still not up to the levels of students without a disability. They are far less likely, for example, to complete year 12, postgraduate degrees or higher level TAFE accreditation than their able-bodied peers. Additionally, students with a disability in higher education also tend to be located within specific fields, such as the arts and humanities, and are far less likely to undertake careers, for example, in accounting or engineering. Clearly we still have some way to go before we can confidently claim that students with disabilities are receiving the same quality education and results as their peers. Students with disabilities seeking to enter higher education have also been disadvantaged by the same funding cuts, reduced and withdrawn income supports, and increasing fees that have plagued all higher education students. When we consider the other barriers faced by students with a disability it can be argued that these policies have had a disproportionately harder effect on them.

The Senate inquiry report further highlighted significant issues in relation to the delivery of primary and secondary education programs. These issues are underpinned by an overall lack of funding, inappropriate and inconsistent targeting of existing funds, and poor staff training and development in some areas. These problems have left many teachers ill-equipped to cope with the diverse learning needs of their pupils. The result is that many students with disabilities, their parents and, in many instances, their teachers, feel poorly supported. Many also face the double disadvantage arising from multiple disabilities and/or economic disadvantage. According to the HILDA survey of 2002-03, families caring for a child with a disability have a net worth of up to 42 per cent less than comparable families, pushing many well below the poverty line. Many families caring for children with a disability face enormous hardship in maintaining adequate and stable incomes, with carers being far less likely to be employed and, for those who are, far more likely to be working part-time. Meeting regular daily costs, let alone any costs associated with a child’s disability, is a major difficulty for many families. These difficulties have been made worse by a history of reduced access to carers payments that have failed to keep up with the rising costs of ordinary living.

There can be little doubt, though, that all of these factors make accessing quality education and staying in it much harder for many people with disabilities. While the disability standards for education will not directly resolve many of these broader issues or have any impact on the harsh, unnecessary and unfair policy directions taken in that regard, they will assist to remedy and reduce at least some of the barriers to education that people with a disability encounter in their contact with schools, universities, TAFEs and other training providers. The standards clarify and elaborate on what education providers must do in order to meet the requirements of the DDA, thereby assisting them to eliminate discrimination and maximise opportunity, access and engagement of students with a disability in a learning environment.

According to the explanatory memorandum, the bill prepares the DDA for the subsequent introduction of the disability standards for education by, firstly, defining the term ‘education provider’; secondly, extending the unjustifiable hardship provisions of the act; thirdly, making discrimination in the development or accreditation of curricula or training courses unlawful; fourthly, requiring education providers to develop strategies and programs to prevent harassment and victimisation; and, finally, clarifying that reasonable adjustments may be required. While we Democrats fully support the principle of the bill and are really keen to see the standards pass quickly, we have also been concerned to ensure that this process occurs with full and proper consideration. This is why we referred the bill to a quick inquiry at the end of last year.

Although the process for developing the standards has been a lengthy one and the subject of much consultation, there were and continue to be a number of outstanding issues. While there is broad agreement about the principles underpinning the standards, state and territory education ministers have been unable to agree about what costs might be associated with their implementation. Throughout the course of the standards’ development, the states and territories provided widely divergent estimates as to how much the standards might cost to implement, ranging from that of the ACT and Tasmania, which believed costs would be negligible, to that of New South Wales, which cited costs in the order of $1.8 billion. As a consequence of these concerns, conditional support was given by the states in July 2003, provided the Commonwealth committed to providing new, non-recurrent funding for all professional development costs and the sharing of unforeseen costs arising from the standards. Cost estimates are not uniform across sectors either. The higher education sector believes it is already a long way towards ensuring that it meets the requirements of the DDA and does not expect substantial additional cost, while the non-government primary and secondary education sector have aired concerns about a disproportionate impact on their sector because, as they argue, the number of students within their systems is increasing at a rate far greater than funding growth.

The flip side of those arguments, however, has come from a range of organisations within the disability sector as well as the Human Rights and Equal Opportunity Commission and others. They are of the view that the standards do not create any additional requirements for education providers but, rather, describe existing obligations in greater detail. Therefore, they argue, there should be no additional costs attributable to the standards’ introduction. Independent consultants engaged by DEST as part of the regulation impact statement process agreed with this position and dramatically revised and reduced cost estimates. They did acknowledge, however, that costs associated with professional development were legitimate. They recommended one-off and new funding to help meet those costs. We Democrats have sympathy for that view.

As a matter of basic principle, we do not accept that the provision of accessible education to students with a disability should boil down to an argument about funding. Accessible education ought to be a fundamental right. It should be freely available and non-discriminatory in its approach. Additionally, we agree that the standards only clarify existing obligations on education providers, so they should have no real cost impact. We do, however, support the need for an education program accompanying their introduction. Such a program should not be financed by schools already starved of program and professional development funding. We welcome the government’s stated commitment to continuing the development of professional development materials, but we call on it to quantify this commitment and ensure that funding is also provided to make sure that these materials are comprehensively delivered in an appropriate professional development training environment.

Another area of significant concern to the Democrats at the time of the inquiry referral was the extension of unjustifiable hardship provisions within the act to all post-enrolment situations. The Attorney-General asserted quite correctly that this extension is consistent with recommendations contained in the Productivity Commission’s review of the DDA, but he failed to mention that this was conditional on the inclusion in the act of the concept of reasonable adjustment. Such an inclusion would act as a check and balance by expressly requiring education providers to ensure that all reasonable adjustments are made to the point of unjustifiable hardship to remedy discrimination on the grounds of disability. In effect, the government proposes in this bill to dramatically extend the circumstances in which education providers can claim a defence to discrimination and, in the process, severely restrict the rights of students, without providing the corresponding check and balance of reasonable adjustment as recommended by the Productivity Commission.

Disability groups, it must be said, were split on this issue. Although unanimous in their philosophical opposition to such a move, many had come to a position that the extension was a concession they were willing to make for the greater comparative benefit of the standards. Many others, especially disability law experts such as the Public Interest Advocacy Centre, People With Disability Australia, Australian Lawyers for Human Rights and Family Advocacy, maintained their concern. They argued that, while the concept of reasonable adjustment is referred to in the amending bill, it is not defined. Also, while it is referred to in the draft standards, it is not expressly linked to unjustifiable hardship provisions. The failure to include and link the concept of reasonable adjustment to unjustifiable hardship is further compounded, they argue, because the amending bill does not expressly require that any avoidance of discrimination must necessarily impose an unjustifiable hardship. It is simply enough to demonstrate that unjustifiable hardship is present, without exploration of alternative methods that might avoid that hardship. We Democrats share these concerns and believe these issues represent serious limitations in the bill.

Since these issues were raised late last year, however, the government has released its response to the recommendations of the Productivity Commission review of the DDA. In part, it has accepted the commission’s recommendation that a definition of ‘reasonable adjustment’ be included in the substantive act. The government’s commitment to a broader review of the DDA, especially in this regard, has been accepted by disability advocates and satisfied their immediate concerns relating to this bill. To that end, we Democrats will not seek to amend the current bill to deal with these limitations but join with the disability sector in calling on the government to ensure the Productivity Commission’s recommendations for improvement to the DDA are a matter of priority.

We commend the introduction of this bill. It is an important and positive step towards dramatically improving the experience of many students with a disability in education, by improving their access and reducing the discrimination they may suffer. The bill and subsequent standards represent the culmination of many years of work by a great number of people across disability, education and training, and government and non-government sectors, whose input cannot be underestimated. Having noted our concerns for improvement to the DDA and the need for additional funding for the standards’ introduction, we look forward to the passage of this bill and the speedy introduction of the disability standards for education.