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Wednesday, 9 February 2005
Page: 7

Senator TROETH (Parliamentary Secretary to the Minister for Industry, Tourism and Resources) (9:53 AM) —I am very pleased to speak on the Disability Discrimination Amendment (Education Standards) Bill 2004 [2005]. As a former teacher and former member of the Senate Employment, Education and Training References Committee, it is always a subject in which I have taken a great interest. This bill amends the Disability Discrimination Act 1992 in minor ways to ensure that the draft disability standards for education are fully supported by the act. The standards will provide greater certainty and clarity for education providers as to their obligations under the act. The development of these standards has involved ongoing and extensive consultation with key education, training and disability stakeholders. Indeed, I note that the instigation of the work on the development of the standards was a request in 1995—10 years ago—from the then Attorney-General to the then Minister for Employment, Education and Training, seeking advice on the creation of disability standards which would make rights and responsibilities in the field of education and training easier to understand.

In December 1995, the Ministerial Council on Education, Employment, Training and Youth Affairs agreed to establish a task force to oversee this task. Accordingly, in 1996, a task force led by the Australian government and comprising representatives of state and territory and non-government education and training authorities and providers, as well as the university sector and the DDA standards project representing the disability sector, commenced work on the development of a discussion paper that canvassed the feasibility and desirability of disability standards for education. This paper was endorsed by the ministerial council as the basis for consultation in 1997 with education, training and disability stakeholders. Importantly, the consultations found that 80 per cent of respondents favoured the production of standards but wished to be consulted on any standards produced.

Work on drafting the disability standards for education commenced in 1998. Their development involved an iterative process to define essential concepts, operational principles and performance measures. In 2000, the ministerial council agreed that the draft standards as then developed should be used as the basis for broad consultation with education, training and disability stakeholders. Twelve thousand copies of the standards and guidance notes, as then drafted, accompanied by a consultation paper, were released for comment in August 2000. Following those consultations, the draft standards were further amended to take account of the feedback received.

In July 2001, the ministerial council referred the standards to its senior officials committee, the Australian Education Systems Officials Committee, for agreement on amendments and clarifications to the standards and development of a regulation impact statement. A working group, which was established to assist the senior officials committee and covered the stakeholder groups, produced further drafts of the standards. At its meeting in July 2002, the ministerial council expressed concern over the delay in finalising the draft standards and requested resolution of remaining legal and financial issues. Legal issues raised by education providers and other stakeholders were systematically addressed by Australian government officials, in consultation with the Australian Government Solicitor.

In July 2003, the ministerial council considered the outcomes of this analysis and the final draft of the standards. While the ministerial council endorsed the form and content of the standards, the states, other than Tasmania and the ACT, indicated that their endorsement was subject to Australian government agreement to provide new, non-recurrent funding for professional development transition costs and to share unforeseen costs arising from the standards. The Minister for Education, Science and Training offered to make a contribution to the development of professional development materials to support the implementation of the standards.

As the meeting did not collaboratively endorse the standards, and consistent with the Australian government’s position, Minister Nelson announced that, having exhausted all options for collaborative endorsement of the standards, the Australian government would move unilaterally to implement the standards, and the minister issued a media release to this effect. The decision was also consistent with the recommendation of the Senate Employment, Workplace Relations and Education Committee when it released its unanimous report, Education of students with disabilities, in December 2002. The committee was strongly critical of the failure of ministerial council to reach agreement on the standards and urged the Commonwealth to act unilaterally to bring the standards into force.

We may well ask: to whom will the standards apply and how will they operate? The disability standards for education will apply to government and non-government providers in all education sectors—preschool, school, vocational education and training, higher education, and adult and community education—as well as to organisations whose purpose is to develop and accredit curricula and courses. The standards clarify and elaborate on the existing obligations of education providers under the DDA in five key areas: enrolment; participation; curriculum development, accreditation and delivery; student support services; and the elimination of harassment and victimisation. They also set out the rights or entitlements of students with disabilities, consistent with those of the rest of the community, to access and participate in education and training. The standards are accompanied by guidance notes, which provide additional explanatory material to assist the reader in interpreting and complying with the standards.

The standards recognise that, to overcome the disadvantage arising from their disability, students with a disability need to be treated differently in order to remove or reduce barriers to their participation in education. This is achieved through an adjustment, a measure or action that enables the student to enrol and participate in education on the same basis as students without disabilities. To identify and make an adjustment appropriate to a student’s disability, providers are required to consult with the student or their associate. The consultation may also involve an independent expert opinion.

An adjustment is only required to be ‘reasonable’—that is, to balance the interests of all parties affected, including the student with the disability, the education provider, the staff and other students. In addition, an education provider will not be required to comply with the standards if, and to the extent that, compliance would cause it ‘unjustifiable hardship’. Through the concepts of ‘reasonable adjustments’ and ‘unjustifiable hardship’ the standards seek to balance the needs of students with a disability against the obligations on providers. At present, it is only possible for an education provider to claim unjustifiable hardship at the point of enrolment of a student with a disability. The Disability Discrimination Amendment (Education Standards) Bill 2004 [2005] includes an amendment to extend the defence of unjustifiable hardship beyond the point of enrolment to also apply to the areas of participation, curriculum development, accreditation and delivery, and student support services.

Now that this long process has come to an end, the government has publicly stated its commitment to formulating and tabling the education standards when the bill has passed both houses. Once the amendments contained in the bill are passed, the Attorney-General will formulate the standards, which will trigger the statutory process in section 31 of the act. Subject to a notice of motion to amend the standards being given in either house of parliament, the date of commencement of the education standards is not less than 15 sitting days after they are tabled by the Attorney-General. Clause 2 of the bill provides that the amendments to the act will commence on a date to be fixed by proclamation. This will allow the commencement of the amendments and the education standards to be coordinated.

Beyond the parliamentary process, of course, the general public need to know what the education standards entail. The standards particularise positive steps that education providers will have to take, but implementation is a matter for individual education providers. To assist education providers to understand their obligations under the standards, plain English guidance notes have also been developed. As noted earlier, the draft education standards were negotiated with education providers and the disability sector in great detail over many years. Their development has been a collaborative effort involving representatives of state and territory governments and stakeholder groups within the education and training sector, including non-government education and training providers, universities and the disability sector.

Following formulation of the education standards, the Minister for Education, Science and Training will write to all schools across the country, informing them of the education standards and providing them with copies of the standards and accompanying guidance notes. Letters will also be sent to disability organisations to inform them about the education standards. The education standards and guidance notes will be made electronically available to the public by publishing them on relevant web sites, including those of the Attorney-General’s Department, the Department of Education, Science and Training, and the Human Rights and Equal Opportunity Commission. In line with his offer at the 2003 ministerial meeting, the Minister for Education, Science and Training will contribute to the development of professional development materials to support the implementation of the standards. This has taken a very long time, and I am simply delighted that it has now happened.

On a more parochial note, I would like to note in this morning’s press an article by the education editor of the Age, which notes:



State Government has backed down on effective education funding cuts for children with disabilities by preparing to spend an extra $7 million per year.

The article continues that last December:

... two days before school ended, eligibility rules for new students with disabilities were altered—

by the Victorian state government—

so that those entering specialist or mainstream schools this year would receive $6000 to $12000 less than they would have received last year.

This is an absolute outrage. The article continued:

Less funding meant fewer teachers and therapists and also threatened the viability of some specialist schools.

Yesterday, apparently, the Victorian Minister for Education Services announced that extra money would be made available. This is a notable backflip and one that I am delighted to note. The Department of Education and Training in Victoria is to contact every school with students who have been affected to make arrangements to adjust their budget as necessary. Although the education department in Victoria reckons an extra $7 million will be needed, some estimates have put the funding shortfall at $14 million, and it will be extremely interesting to note what, if any, further measures the Victorian education department and minister are going to take to rectify this situation.

The Association for Children with a Disability and its Chief Executive Officer, Mr Michael Gourlay, cautiously welcomed this change, but Mr Gourlay also said:

We will need to see the detailed workings of the formula, and the department’s costings, before we’re reassured that $7 million is enough to achieve the objectives the Government has stated.

So it is interesting that it has taken a great deal of outcry by those groups affected to make this change, and in response the government has, some three months later, made a change which will at least restore some funding to students with disabilities, although it remains to be seen whether this is enough.

It is significant that the article notes that until yesterday the government’s solution was to tinker with eligibility rules rather than to increase funding because, although in the last four years the state government has increased funding in the area by $111 million, this has failed to match the growth in the number of students diagnosed with a disability. Now that the Commonwealth government has at last brought down the disability standards, it will be interesting to see if the state government proceeds to match those in moneys provided for students with disabilities.