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Law and Anti-Discrimination

This paper will discuss disability discrimination and the legislative and non-legislative tools used to combat it. The major piece of federal legislation, the Disability Discrimination Act (1992) will be examined in considerable detail, and an attempt will be made to analyze its strengths and weakness, with reference to various opinions put forward by individuals and organizations concerned with its implementation.

Particular emphasis will be placed upon compliance with the Act. The issues that have been subject to the public debate will be discussed, including arguments for and against compliance processes that have been suggested by governmental bodies.

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A comparison will be made between measures used in other nations to counter disability discrimination, with the view of making suggestions on improving the processes proposed in Australia.

Possible models for Compliance in Education will then be listed, and finally, an opinion will be made as to which of these models would be the most appropriate, with consideration as to the circumstances in Australia today.

What is Disability Discrimination?

Section 5 of the Disability Discrimination Act 1992 (Cth) outlines the meaning of Disability Discrimination. Disability discrimination happens when people with a disability are treated less fairly than people without a disability. Disability discrimination also occurs when people are treated less fairly because they are relatives, friends, co-workers or associates of a person with a disability.

It is against the law to discriminate against someone if they have a disability in various areas of life. All governments in Australia have responsibilities under the DDA to ensure that this type of discrimination does not occur. The Federal Disability Discrimination Act makes disability discrimination against the law, covering a broad range of areas in life including employment (s.15), education (s.22), access to premises (s.23), accommodation (s.25), buying land (s.26), sport (s.28) and many more. The definition of “disability”, as stated in s.4 of the Act, is very broad, including disability of the following kinds; physical, intellectual, psychiatric, neurological and physical disfigurement.

The DDA also protects people like relatives, friends, carers and co-workers of a person with a disability if they are discriminated against because of the person’s disability. Harassment because of disability, such as insults or humiliating jokes, is unlawful (under ss. 35-40 of the Act) in employment, education and in the provision of goods, services and facilities.

The DDA was passed by the Commonwealth Parliament in 1992. The objectives of the DDA, as set out in s.3, is to eliminate discrimination against people on the grounds of disability, to ensure that people with disabilities have the same rights before the law as the rest of the community, and to promote the principle that people with disabilities have the same rights as the rest of the community. The DDA makes both direct and indirect discrimination unlawful. Direct discrimination involves treating a disabled person less favourably.

Indirect discrimination occurs when a disabled person is required unnecessarily to comply with rules and conditions. Under the DDA, a person who considers that he or she has experienced disability discrimination can make a complaint. Section 33 of the DDA contains provisions for the making of standards in areas such as education, where this could provide a more systematic way of addressing possible disability discrimination.

The Human Rights and Equal Opportunity Commission (HREOC), (its functions are set out in s.67 of the DDA), has held that the DMA covers State Government education departments as well as other educational institutions. This includes all public and private educational institutions, primary and secondary schools, and tertiary institutions such as TAFE, private colleges and universities.

Section 22 of the DDA states that educational institutions must offer a person with a disability the same educational opportunities as everyone else. This means that if a person with a disability meets the necessary entry requirements of a school or college he or she would have just as much chance to study there as anyone else. Amongst the many types of disabled people protected are those who are unable to read, write or communicate effectively because of learning disabilities, and those who are unable to concentrate or pay attention properly. Institutions must base their decisions on a person’s ability to meet the essential requirements of the course. They should not make assumptions about their potential because of a disability. Section 22 of the DDA protects people with a disability against discrimination in education in the following areas:

Refusal or failure to accept an application for admission form a person with a disability, or accepting a person with a disability as a student on less favourable terms or conditions than others.

Denying or limiting access to people with a disability.

Expelling a person because of a disability.

Subjecting a person with a disability to any other detriment.

In s.37 of the Act, it states that it is unlawful to make humiliating comments or actions about a person’s disability, such as insults, or comments or actions that create a hostile environment.

If a person with a disability meets the essential entry requirements of the particular institution, then the institution must make changes or “reasonable adjustments” if that person needs them to perform essential tasks. For example, if a student is unable to perform experiments in chemistry class because the bench is too high, the institution must provide lower tables, or make other adjustments to enable the student to perform the required task. Adjustments would include:

Modifying educational premises. For example; making ramps, modifying toilets and ensuring that classes and rooms are made accessible to the person with the disability. (s.23)

Modifying or providing equipment. For example; lowering tables, enlarging computer screens and providing specific computer software. (s.24)

Changing assessment procedures. For example; allowing for alternative examination methods such as oral exams, or allowing additional time. (s.24)

Changing teaching methods. For example; providing study notes or research materials in different formats. (s.30)

Issues arise when the institution refuses to admit a student with a disability. The institution may not be able to provide essential support mechanisms or study aids to meet the disabled person’s needs. Similar issues arise when a student is excluded or suspended after a certain period in an institution. Many students with a disability have reported discrimination and blatant discouragement of their participation by teachers and principles. However, the DDA does not require changes to be made if this will cause major difficulties or unreasonable costs to an educational institution. This is called “unjustifiable hardship”. Before they can claim that adjustments are unjustified, institutions need to:

1. Thoroughly consider how an adjustment might be made,

2. Discuss this directly with the person involved, and

3. Consult relevant sources of advice.

Case law suggests that, in addition to the adherence of the general rules of elimination of discrimination, a reasonable balance between the rights of the student with a disability and the rights and well being of the other students and teachers need to be taken into account. This principle was taken into account in L v Minister for Education for Queensland (1996) EOC, where it was held that the student’s behavioural problems caused “unjustifiable hardship” for the student’s teacher: “Costs alone would not necessarily persuade me that unjustifiable hardship existed; the greater problem is that even with that level of resource, as long as L remains in the regular classroom, disruption of other children is inevitable, at least until her skills are improved.

Even the process of intervention, with the withdrawal of her from the classroom when she is noisy or requires toileting, must of itself be disruptive to other children.” ( 92-787 at 78,821). An important factor to be considered in determining the existence of “unjustifiable hardship” is outlined in the DDA s11(a), where it states that the “nature and benefit or detriment likely to accrue or be suffered by any persons concerned” is to be taken into account.

DDA Education Standards

Section 33 of the DDA includes provisions for the making of standards in education, where this could provide a more systematic way of avoiding disability discrimination. Standards under the DDA have the potential to make people’s rights and obligations DDA easier to understand. This is a compliance mechanism that works by setting out in much greater detail what must be done to obey the law. If done well, a Disability Standard can help providers comply with the DDA through clarifying their obligations and by setting out how they can fulfil those obligations.

A Disability Standard for Education has been prepared by the Ministerial Council of Education, Employment, Training and Youth Affairs (MCEETYA). The MCEETYA set up a Taskforce to consider whether education standards under the DDA could be developed. The Taskforce includes representatives of State Government and non-government school sectors, higher education sectors and people with disabilities. From 1997, the council worked on developing the draft combining both principle and performance-based standards. The standards have since been re-drafted and address five key areas:

1. enrolment;

2. participation;

3. curriculum development, accreditation and delivery;

4. student support services; and

5. elimination of harassment and victimization

The draft Disability Standards for Education were negotiated by the members of the Taskforce and finally presented to MCEETYA in March 2000. Council agreed to further develop the consultation process with use of the draft standards.

HREOC has the responsibility for the administration of the DDA, and maintains a list of current Action Plans on its web site. Standards under Section 31 of the DDA has the power of law and are thus binding on those to whom they apply. Complaints about discrimination on the grounds of disability can be made to HREOC and will be assessed under the standards in the Act.

The DDA includes compliance processes in order to ensure that disability discrimination law is obeyed.

These compliance processes have raised many issues amongst academic educators, scholars and advocates of disability rights. Concerns that have been raised by disability organizations include:

It sets a minimum standard only. Some institutions have a greater capacity to meet the standards than others, thus the standards may not be comprehensive enough to meet the differing levels of disability.

It will not provide absolute certainty of requirements or expectations.

It relies on individuals with disabilities to enforce the Standard. There is no mechanism in the Act to deal with breach of standard, consequently leading to a very time consuming and troublesome process for the person making the complaint.

On the other hand, advocates of DDA education standards support its development and implementation: “The existence of such standards would assist the union to develop policy frameworks to guide its negotiations with employing authorities on such issues, to lobby funding authorities and to educate and raise awareness of its members with regard to the requirements and applicability of the Act.”

An example of compliance of standards set out in the DDA is the implementation of Disability Services Acts. The NSW and WA Disability Services Acts ensure that public services are provided in a non-discriminatory way. The Disability Services Act (WA) requires public authorities to develop and lodge a Disability Service Plan with the Disability Services Commission. The Disability Services Commission is responsible for advising public authorities in relation to the preparation of Disability Service Plans, and evaluating the effectiveness of such plans, with the view to providing further recommendations as to the effectiveness of the plans.

It appears that the system has made public authorities more aware of their obligations to the disabled, thus achieving improvements in areas such as public transport. However, in the area of education, there seems to be little improvement, as it seems the Education Department continues to possess all decision-making powers with respect to education options.

In a paper prepared for the MCEETYA Taskforce on DDA Education Standards entitled “Comparison of International Provisions on Disability Discrimination in Education”, the measures undertaken by four other nations to counter discrimination against students with disabilities in education is examined, with the view to comparing Australia’s approach with that of other countries. There exist many policies implemented by the United States of America and the United Kingdom which could be a useful reference in deciding on our own policies to combat disability discrimination in education.

In the U.K, the Disability Discrimination Act 1995 requires educational institutions to provide information for disabled people. Tertiary institutions are made to publish disability statements containing information about facilities for people with disabilities, and Local Education Authorities have to provide information on their further education facilities for people with disabilities. This piece of legislation is supplemented by the Education Act 1996 which offers opportunities and rights for disabled students to be recognized for special educational needs.

In the United States, the equivalent to the DDA is the Americans with Disabilities Act 1990 (ADA), which includes the Individuals with Disabilities Education Act (IDEA). The purposes of this act are:

1. To provide assistance to States to develop early intervention services for infants and toddlers with disabilities in their families, and to assure a free appropriate public education to all children and youth with disabilities.

2. To assure that the rights of children and youth with disabilities from birth to age 21 and their families are protected.

3. To assist States and localities to provide early intervention services and the education of all children with disabilities.

4. To assess and assure the effectiveness of efforts to provide early intervention services and educate children with disabilities.

There have been recent changes to the IDEA which concentrate on maximizing the services available to disabled students and their families. The U.S government has gone to great lengths in developing a suitable legislative and non-legislative framework for ensuring compliance with the ADA.

The legislation in the U.S is obviously more intricate and advanced in its approach, and like the U.K, uses education legislation to supplement human rights legislation.

When attacking the challenge of creating measures to counter discrimination in education, the Taskforce should consider the policies used in the U.S and the U.K, which may help silence critics of the current recommendations, and thus provide acceptable and practical methods for ensuring compliance of Standards under the DDA.

Six possible models for Compliance in Education have been suggested:

1. Sector Compliance Education- which involves maintaining the DDA in its current form with its existing provisions relating to education and compliance.

2. Improved Complaints Systems- which involves amending the DDA to set out a clear and strict timetable for dealing with complaints and to encourage the delegation of complaint investigation and hearing to appropriate state or territory bodies.

3. Mandating DDA Action Plans- which involves amending the DDA to make Action Plans Mandatory for education providers.

4. Expanded Action Plans in Education- which involves amending the DDA to make Action Plans mandatory for education and to indicate a set of core objectives.

5. Equal Opportunity in Education Agency- which involves amending the DDA to make Action Plans mandatory for education by introducing a new law establishing a new framework, along the lines of the Affirmative Action Agency, which includes an agency responsible for assisting education providers to meet their obligations under the DDA.

6. Adapting existing education reporting- which involves amending existing education laws to complement the DDA.

Many issues arise with the possible implementation of these models, authorities not yet making any conclusive decisions as to which path to take.

At this stage, it is suggested that the most important step towards compliance maintenance would be to implement systems to improve the efficiency of dealing with complaints. In this case, amendments to the DDA would be required to include the timetable for dealing with complaints and to empower HREOC to monitor compliance with the outcomes. This model carries with it benefits for people with disabilities who believe they are being discriminated against. They could anticipate fairly accurately the waiting time in which their application is being processed, and the turnaround times for outcomes cut down. It also carries the benefit of placing responsibility upon the agency to diligently monitor compliance, which in turn would put pressure on institutions to take responsible action promptly.

Bibliography

Books

Ronalds, C., “Discrimination Law and Practice” (1998) The Federation Press

 

Cases

L v Minister for Education for Queensland (1996) EOC 92-787

 

Articles

Banks, R., Kayess, R., “The Disability Discrimination Act- Working Towards Compliance in Education”, DDA Standards Education Page, http://www.ozemail.com.au/~ddasp/ddastardards2doc.2htm

Department of Employment, Education, Training and Youth Affairs (DEET), “Comparison of International Provisions on Disability Discrimination in Education”,

http://www.deet.gov.au/iae/documents/comparison.pdf

Independent Education Union of Australia (IEU), “Disability Discrimination Act – Disability Standards in Education”,

http://www.org.au/policies/disability.html

Ministerial Council on Education, Employment and Youth Affairs (MCEETYA), “Taskforce on the Disability Discrimination Act- Education Standards (DDA)” ,

http://www.curriculum.edu.au/mceetya/taskfrce/task2212.htm

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