DISABILITY DISCRIMINATION AMENDMENT (EDUCATION STANDARDS) BILL 2004 [2005] : Second Reading

DISABILITY DISCRIMINATION AMENDMENT (EDUCATION STANDARDS) BILL 2004 [2005] : Second Reading

• House of representatives

• Senate

House of Representatives

House of Representatives

Thursday 17 February 2005

Debate resumed from 9 February.

Mr RUDDOCK   (Berowra —Attorney-General) (12.27 p.m.) —I move:

That this bill be now read a second time.

This bill is an important precursor to the formulation of disability standards for the education of people with disabilities.

The Disability Discrimination Act 1992 provides that the Attorney-General may formulate disability standards in a range of areas, including the education of persons with a disability.

Draft disability standards for education have been developed over many years.

Their development has involved extensive consultation with government and non-government education providers, the disability sector and other interested members of the public.

In June 2004 the government released for public information a final draft of the standards, along with accompanying guidance notes to assist in their interpretation.

The draft standards differ from the operation of the act in minor ways. Therefore, it is necessary to make minor amendments to the act to ensure that the standards are supported to the greatest possible extent.

One amendment is to extend the defence of `unjustifiable hardship' to aspects of education beyond the point of enrolment. The others are to introduce a new definition of `education provider' and to clarify the position with respect to `reasonable adjustments' and the harassment and victimisation of students with disabilities.

When implemented, the draft disability standards for education will specify how education and training are to be made more accessible to students and prospective students with disabilities, without imposing unduly onerous burdens on education providers. They will clearly describe the obligations of education providers in relation to students with disabilities and provide guidance on how to meet those obligations.

The standards will cover government and non-government providers in all sectors: pre-school, school, vocational education and training, higher education, and adult and community education.

The Productivity Commission's recent review of the Disability Discrimination Act identified `exclusion from, and segregation in, education' as `one of the most serious forms of disability discrimination'.

Disability discrimination in education can manifest itself in many ways, including refusal of enrolment, exclusion from sports or other activities, negative attitudes and unsuitable or inflexible criteria.

This bill will amend the Disability Discrimination Act to make it clear that disability standards may require education providers to make reasonable adjustments to avoid discriminating on the ground of disability in relation to education and training.

What is a `reasonable adjustment' will depend on the circumstances of the individual case, but may involve something as simple as allowing a student additional time to complete a test, or supporting the use of assistive computer technology.

Education providers will not be required to make adjustments for students with disabilities if making those adjustments would cause them unjustifiable hardship.

The Productivity Commission's review of the Disability Discrimination Act also noted that the absence of an unjustifiable hardship defence after the point of enrolment has created problems for educational institutions. It may be inadvertently aggravating discrimination by being a disincentive to providers to enrol students with disabilities.

The government considers that more inclusive education and training can play a significant role in changing broader community attitudes about people with disabilities, and will play a crucial part in preparing people for participating more fully in the work force.

Passing this bill is the next step in ensuring that outcome. I present the explanatory memorandum.

Ms ROXON   (Gellibrand) (12.30 p.m.) —As the Attorney-General has set out in his second reading speech, the Disability Discrimination Amendment (Education Standards) Bill 2004 amends the Disability Discrimination Act 1992 to ensure that provisions of the draft disability standards for education are fully supported by the act. Labor strongly supports the passage of the bill; the implementation of education standards pursuant to the Disability Discrimination Act is long overdue. It is an important step, and one which we had all hoped would have been taken long before now. In fact, this process began in the years of the Keating government —which demonstrates how drawn out the process has been and probably how complicated many of the issues are.

We remain concerned, however, that the government has not looked at how the implementation of the standards can be funded. We dispute the fact that this bill will not result in any extra cost, and strongly believe that the Commonwealth government should put its money where its mouth is to support the important aims of the act and the introduction of the education standards to improve the position of, and opportunities for, disabled people in education and training.

The government has released a final draft of the standards, which are intended to clarify and elaborate upon the obligations of education and training providers in relation to students with disabilities. The standards will be tabled in parliament some time following the passage of this bill. 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.

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 education of people with a disability. As I said at the start, work on these standards has been under way since 1995, with the Ministerial Council on Education, Employment Training and Youth Affairs being involved in two consultation processes with relevant stakeholders in 1997 and 2000. There is strong support in the disability sector for the standards to be introduced, to help address access issues for students with a disability and remove barriers to their full inclusion in the education environment.

The education standards must be implemented as quickly as possible to ensure access for students with a disability, but this will not be without significant cost. We strongly support the bill but I would like to place on the record our concern at the lack of consultation with the states, which will have the major responsibility for bringing education facilities up to standard. Our concern is not with the lack of consultation over the standards themselves but with the lack of consultation on their implementation and the cost of that implementation.

In the most recent Senate inquiry into this bill, several states made submissions contesting the Commonwealth government's view that there will be no financial impact upon the passage of the legislation and the introduction of the standards. We are therefore greatly concerned at the fact that the costs will fall heavily on the states —and the failure of the Commonwealth government to make a contribution is a significant issue.

In 2003, all state and territory members of the Ministerial Council on Education, Employment Training and Youth Affairs —except for Tasmania and the ACT —voted against the Commonwealth's move to introduce the standards. While they agree with the content and intent, the states and territories were not prepared to move forward unless the Commonwealth agreed to share the costs of implementation —which it is considered will be significant —and a phase-in of the standards.

The Commonwealth has moved unilaterally to have this bill passed and the standards introduced. There is strong support from education authorities and disability groups for the principles behind the bill. However several states are arguing that the cost implications are likely to be significant, and the Commonwealth is not providing any extra resources to assist with implementation. Clearly, this is worrying a number of those who have to provide the facilities and services on the ground.

It is clear that new subsection 31(1A), while it may require only minor changes to teaching practice or equipment provision, could result in major capital expenditure being required of an education provider. MCEETYA specifically raised this issue in the development of the standards as a possible impediment in the implementation phase. This government is clearly trying to steamroll the states in this cost-shifting exercise and has been unwilling to meet its responsibilities in sharing costs. While we are willing to accept the passage of this legislation, because we strongly believe in improving access for students with disabilities, we are gravely concerned that the money will not be available to make sure that the bill, once passed, and the standards, once introduced will be able to work effectively.

There is also some concern from parent groups that the extended defence of unjustifiable hardship is a major trade-off for the other beneficial aspects of the bill —that is, that their children may in fact experience increased discrimination because underresourced schools will be able to enrol their children but continually refuse to make necessary adjustments for their full inclusion. This is a worrying area, where the issues of financing and principle interact with each other. Labor supports the bill, but we call on the government to immediately undertake negotiations with state and territory education authorities and come to an agreed cost-sharing arrangement. Labor also reiterates the 2004 Senate committee's comments that the final education standards should be introduced as soon as possible.

In summary, we have some concerns about aspects of this legislation and its implementation but these concerns cannot override the very important benefits that this bill and the education standards will provide for disabled students. The goal to eliminate discrimination against people with a disability in education is enormously important. The right of every person and every child to an education is essential, and this parliament must do all it can to ensure that this right is available to everyone, regardless of any disability they may have.

Mr RICHARDSON   ( Kingston ) (12.37 p.m.) —I rise to support the Disability Discrimination Amendment (Education Standards) Bill 2004 . My counterpart just mentioned the cost implication to a school. That school could perhaps apply for funding under the Howard government's direct funding for building alterations or infrastructure. The purpose of this bill is to establish a framework and legislative base which will give the best possible support to the education standards to be tabled in this parliament shortly. The Disability Discrimination Act 1992 allows the Attorney-General to develop disability standards in a wide variety of areas. One such area is the education of individuals with a disability. In June 2004 the government released for public information a final draft of the disability standards for education. These standards have been developed through extensive consultation with a wide variety of education providers, as well as with the disability sector and interested members of the public.

The operation of the act differs marginally from the final draft of the standards, and that brings us to the specific achievements of this bill. The aim of this bill is to bring the legislation into line with those standards. The disability sector is eagerly awaiting the introduction of these standards, because they will finally provide the clarity and direction the industry so desperately needs in relation to students and prospective students with a disability. This government is dedicated not only to serving the disability sector but to doing so in the most effective manner possible. For that reason we have not introduced these standards without first seeking these amendments, for the simple reason that the industry and the community alike need the standards to be fully supported in legislation, without ambiguity, if they are to achieve their desired result.

The term `education provider' is used throughout the draft standards; it is a term used to describe educational authorities, institutions and organisations whose purpose is to develop or accredit curricula and training courses. The term `education provider' is neither defined nor used in the Disability Discrimination Act. This bill seeks to remove that anomaly, and to do so by defining the term with reference to terms already used and defined in the existing legislation. This bill also takes the very important step of making it unlawful for education providers to develop or approve any form of curricula or training course which would have the effect of excluding individuals with a disability from participation or which would otherwise subject them to detriment.

Individuals with a disability are not simply dealing with the physical impediments posed by their disability; they are also faced with the ever-growing challenge of overcoming the perceptions held by others and, in some cases, learning to deal with harassment and victimisation. This bill seeks to require education providers to become proactive in the prevention of harassment and victimisation. It will require providers to develop and implement strategies and programs which will prevent such behaviour, and to educate staff and students about the policies and the consequences if victimisation or harassment occurs. We are talking about a provision which ensures that a group who are already disadvantaged by circumstance are not further inhibited from accessing education because they are subject to the soul-destroying acts of others.

In proposing this bill, the government has not simply shifted the burden of preventing discrimination onto education providers. This bill provides for the extension of the `unjustifiable hardship' defence to cover post-enrolment situations, as well as curriculum development and accreditation, student support services and proposals for the elimination of harassment and victimisation. This bill affords education providers the ability to avoid provisions of this bill which would place the provider in a situation of undue hardship. The extension of this defence ensures that education will not be taking on the entire burden of eliminating disability discrimination in education.

Finally, this bill seeks to amend section 31 of the Disability Discrimination Act by allowing the disability standards to require reasonable adjustments to be made by education providers to eliminate, as far as possible, discrimination on the ground of disability. The Howard government made a public commitment in the joint statement by the Attorney-General and the Minister for Education, Science and Training on 15 June 2004. They made a commitment to the disability sector, to education providers and to the Australian people that they would introduce legislation which would ensure full legislative support for the draft disability standards for education. I stand before the House today to assist my government in delivering on that commitment. I increasingly meet with constituents in my electorate of Kingston who have a disability but who seek employment, and I regularly come in contact with service providers who place individuals with a disability into employment. The benefit to the community, to employers and to those individuals with a disability who obtain employment cannot be denied. I can tell you first-hand, Mr Deputy Speaker, that one of the major steps to ensuring higher levels of employment amongst this group is providing them with education.

This bill provides a base which will enable the disability standards for education to remove a massive roadblock currently preventing those with a disability from accessing education. The Howard government are dedicated to the education of Australians, and by that we mean all Australians. Australians with a disability face very real barriers when it comes to accessing education because those barriers are not always visible or obvious and they are not always dealt with. That stops today with the passage of this bill; that stops with the introduction of the disability standards for education. In the hope that it will make a difference in the lives of those with a disability, I commend this bill to the House.

Ms MACKLIN   (Jagajaga) (12.45 p.m.) —Congratulations, Mr Deputy Speaker, on joining the Speaker's panel. I will have to behave now!

The DEPUTY SPEAKER (Mr McMullan) —Indeed you will!

Ms MACKLIN —It is a great pleasure to be able to speak on the Disability Discrimination Amendment (Education Standards) Bill 2004 . At the outset, I want to say a couple of things about two schools in my electorate that do an outstanding job, along with many, many other schools. The first is Banksia Secondary College , which is a fantastic school. I remember being part of a most extraordinary end of year awards presentation at the school in which one of the school captains Nick Brock, who is deaf, delivered his speech and ran the assembly using Auslan, and there was somebody there interpreting for him. It was an incredibly special afternoon, and a tribute to the wonderful efforts of the school. That school has a number of children with disabilities, some mild but some extremely disabling. There are some students with cerebral palsy and a significant number of students who are hearing impaired.

The second is the wonderful Rosanna Golf Links Primary School that has the regional deaf facility located within the school. It is a great tribute to the staff and the parents of Rosanna Golf Links to see the fantastic way in which the hearing impaired children are integrated into the school. There is separate learning time when there is very highly focused education for the children who are deaf, but they spend a lot of their time in the ordinary classrooms with all the other kids, and it is a wonderful thing to see the way in which they develop.

In both schools, one of the most special occasions is to see them all singing together. This happened while I was at Banksia, and I know it will happen at Rosanna Golf Links when I go there shortly to present their leadership awards. It is amazing to see the children using their voices to sing alongside children who are signing, whether the national anthem or other songs. It is a very moving experience.

It is very important that we support this legislation today to amend the Disability Discrimination Act 1992 so that we can have disability standards properly introduced into all of our educational facilities. I think it has taken far too long, frankly, for these standards to be introduced, so I am a very strong supporter of them going through this parliament. The whole purpose of the standards is to make sure the Disability Discrimination Act is being applied in our schools. Of course, the standards set out not only the rights of students but also the legal obligations of education and training providers. The standards provided for under the bill will detail how education systems have to meet their obligations under the Disability Discrimination Act. They are a very important step towards ensuring —not only in the schools I mentioned at the start of my remarks today but in every single school, TAFE or university —full participation in and equal access to education for people with a disability.

The disability standards will make sure that education providers take all reasonable measures to deliver equitable access to educational programs for students with disabilities. Providers will be able to claim unjustifiable hardship, such as the cost of capital upgrading or equipment, but I certainly hope the Commonwealth government, the state government and non-government providers of education do everything they possibly can to make sure these standards are met because they are designed to protect the interests of students with disabilities.

The standards are all about making sure that students with disabilities have access to schools and other educational facilities so they can participate in the curriculum and related programs on the same basis as other children and young people. As is the case at Banksia Secondary College , schools have come a very long way over the last decade, but they do need additional support and guidance to make sure they provide equal access to people with a disability.

Compliance with disability standards for education is an important investment. We know that providing equal access is a very big task, because there are about 100,000 students with disabilities in our schools, both special schools and regular schools. Eighty per cent of students with disabilities attend government schools. The number of students with disabilities receiving integration support to help them in regular schools has grown significantly over the last decade —I think it has trebled.

So there has been a very significant increase in the number of students with disabilities being `mainstreamed' into government schools. It is probably the case now that almost every government school would have enrolled at least one student with a disability. State and territory governments provide over 95 per cent of funding for students with disabilities in government schools. As in other areas, the Commonwealth government is the major source of public funds for students with disabilities in non-government schools —in fact, over two-thirds of the public funding in those schools.

Students have a very wide range of disabilities, whether it is intellectual disability, sensory disability, vision or hearing impairment, physical disability, one of a very wide range of social, emotional or behavioural disabilities, or developmental delay. It is often the case that students have multiple disabilities, and these are significant issues for students, teachers and parents to deal with in school. Some students also have other forms of disadvantage, whether it is isolation, poverty, being indigenous, social deprivation or so on. We have a very significant challenge, particularly for the schools in those environments.

There are some students with disabilities who are still educated in special schools, and these special schools provide a very important educational environment for those students. There are about 20,000 students in these separate special schools —that is, about 15 to 20 per cent of all children with disabilities. The remainder are in our regular primary and secondary schools. Interestingly, about two-thirds are in primary schools.

I think everyone in this House knows that the students and teachers in schools, whether they are special schools or regular schools, certainly need extra support. Some of the students need in-class aids —of course, these are the students with more serious disabilities —to help them with their school work and often with other activities around the school as well. There are good systems in place in some schools to provide support through additional consultants who provide advice to teachers, additional print or ICT materials and a range of other integration supports. At each and every school that I go to, this is one of the major issues raised with me. Teachers are feeling under enormous pressure from the demands to respond positively to the needs of the increasing numbers of students with disabilities in their schools. Of course the teachers welcome these children into their classrooms, but I think we have to recognise that it puts a lot of pressure on the teachers. I am sure each and every one of us wants to do the best we can to help them. This area is crying out for more professional-learning programs. Teachers want to be better equipped to deal with the range of children with disabilities. Teachers want their knowledge, skills and teaching and learning methods expanded so that they can do their best by both the children with disabilities and the other children in the classroom.

We also could be doing better in our universities and TAFEs. About six per cent of people doing vocational education and training have a disability, including about 90,000 Australians with a disability at TAFE. There are about 24,000 Australians with a disability studying at our universities. That is about 3½ per cent of all of our Australian students. These disability standards are important not only in our schools but also at TAFEs and in universities so that young people and the mature aged are able to go on to get further qualifications and the skills they need to get a good job. Those students at TAFEs and in universities not only need their teachers to have the skills to educate people with disabilities but also particularly need access to equipment and curriculum materials so that they can succeed in their studies.

Parents with children who have disabilities also have particular needs. They probably need more time with their teachers, especially at school, to help with the education of their children. It is important for schools to have that extra time to develop individual learning plans for the children and to take account of the individual needs that different children have.

One of the big areas of expense is the capital adjustment schools and other educational institutions need so that students with disabilities can access schools, in particular, but also TAFE and universities. This applies to major capital areas, like lifts for educational institutions, and other areas, especially facilities for the hearing impaired and the visually impaired. All of these people need particular capital adjustments to be made so that they can participate in the teaching and learning programs that are available and be successful.

We need some system-wide reforms. Updated curriculum material and better production of equipment would also assist in many of our educational institutions. There has been some independent analysis, such as a paper by the Allen Consulting Group for the Department of Education, Science and Training and the 2004 report of the Productivity Commission. These reports support the development of standards but, most importantly, acknowledge that there are costs associated with the development of these standards. I do not think there is any doubt that implementing the standards will see future education and training of Australians with disabilities improve, but it is a cost that needs to be shared by the Commonwealth, the states and the non-government authorities.

We have had some warning about this. There was a Senate inquiry not long ago that warned the government of the challenges facing our educational authorities when they provide quality services for people with a disability. This inquiry reported in December 2002:

There is unambiguous evidence of under-resourcing of programs aimed at bringing students with disabilities into the mainstream of learning; as well as funding inconsistencies between states.

The committee reported `evidence that the proportion of students with an identified disability is increasing' at a much greater rate than the overall student population. One of the reasons for that is that there is much more effective early diagnosis and continuing successes in medical intervention. Both of these things are good developments, but it is adding to the cost of delivering education.

One area that the committee particularly reflected on was the better understanding of the nature of disability particularly, for example, in the area of autism. I am sure that many members have been in schools where there are children with autism. That particular condition provides challenges both to the staff of the schools and to the parents of the children who have that condition. The Senate committee made the important point that school authorities are moving from remediation, which used to be the way to early diagnosis and mainstreaming of programs. I have no doubt that these strategies will be much more effective in the longer run, but all of us have to face up to the resource pressures that are on our schools, TAFEs and universities now.

The committee made quite a few recommendations and I urge the government to have another look at the Senate inquiry's report and the recommendations that were made. I think they were all very practical, sensible recommendations that would have a very positive effect if the government took them up and introduced them. Unfortunately, we have not had that response from the government. We have this bill today, which I strongly support, but we do need to go further and to recognise that this government has a responsibility to share in the cost of meeting these standards. Unfortunately, when it comes to children in government schools, we have not had any funding above indexation for students with disabilities since 1996 from this government. That is certainly an area where we could do with some improvement. It is also the case that students with disabilities in nongovernment schools, particularly the more needy ones, are crying out for more support. I met with the Associations of Christian Schools this week and once again they raised this issue with me; they too have urgent needs. The 80 per cent of students with disabilities who depend on the public system could certainly do with increased support from this government, as could the students with disabilities in nongovernment schools.

Finally, I just want to touch on some other initiatives that we took to the last election because it is an area that I think that we could certainly do better in once these standards are implemented. We had particular initiatives both in government and in nongovernment schools. They included additional funding not only for capital equipment and ICT infrastructure, both of which are very important if we are going to meet these disability standards, but also for helping teachers in schools to deliver the intensive support that the students with disabilities in both regular and special schools need. Some of the things that we would have spent that money on were more teacher aides in classrooms, more time for classroom teachers to be able to provide personalised teaching, better professional development for classroom teachers and teacher aides, better equipment for students —particularly with physical and intellectual disabilities —and so on. I am very pleased to say that we did have a very comprehensive approach to this area but, all that having been said, I really do want to lend my strong support to the introduction of these standards. But I say to the government that to make these standards work and to make sure they are delivered in all of our educational institutions it will require additional financial support from the Commonwealth.

Mrs ELSON   (Forde) (1.04 p.m.) —I am very proud to speak today on this Disability Discrimination Amendment (Education Standards) Bill 2004 that furthers the rights of people living with a disability. I note that this bill was first introduced in August last year but, of course, it lapsed when the election was called the following month. I commend the Attorney-General, Mr Ruddock, for re-introducing it so quickly. The Howard government has worked hard since being elected to further support and improve opportunities for people with disabilities and to help and support their families to access greater respite and care services. Of course there is still more to be done, and I am working hard with the local organisations in my electorate of Forde to secure more funding for services in our region. This will be an ongoing battle, particularly when the state Labor governments are withdrawing services in some areas. I will outline that in detail later, but I am very pleased to be able to speak today on this bill, which goes one step further in enabling the introduction of the disability standards for education.

Members of this House would be aware that before entering politics I worked as a coordinator for the Handicapped Association —now the Horizon Foundation —and Multicap, a service provider for people with multiple disabilities. In these roles I had the opportunity to see at first hand the daily struggles of people living with a range of disabilities, from mild to more severe. I gained a very deep understanding of their desire to be active, contributing members of their communities and to be accepted as a valued part of society. On a daily basis I learnt much from their constant displays of courage, their determination and their willingness to appreciate the true value of life.

Modern medicine advances have, fortunately, vastly improved the treatment of many conditions, thereby improving the quality of life of people living with a disability. It is estimated that around 20 per cent of Australians live with some form of disability. For some people this will mean an extra daily challenge, but essentially many people living with a disability are able to hold down full-time jobs, lead an active life and play a very important part in our communities. For others, their disability affects their daily life to a greater degree and they require a larger range of support services.

The most comprehensive data collected on the range of disability services provided by both the Commonwealth and the states is the recent Australian Institute of Health and Welfare report Disability support services 2002-2003 . That report found that a total of $2.9 billion was spent in 2002 to 2003 on direct services for those living with a disability and their families. Accommodation support services accounted for 51 per cent of the total funding; community access services were 12 per cent; community support services, 10 per cent; employment services, nine per cent; and respite services, six per cent, or around $172 million.

As I said at the outset, our government has worked hard to deliver more services and assistance for people living with a disability, including the $1.7 billion Australians Working Together package, which offers more employment services and opportunities. Of course, education and training is a major factor in employment opportunities and advancement. Sadly, the Productivity Commission review of the Disability Discrimination Act found that exclusion from education and training is one of the most serious forms of disability discrimination. The setting of disability standards for education is expected to go some way towards addressing this inequity and setting out clear guidelines for the provision of education services.

Our approach with this bill, as always, is balanced. We want to improve access and make people with a disability more aware of their rights, while at the same time ensuring, through the provisions about unjustifiable hardship, that education providers are not unduly disadvantaged. It is a sensible and balanced approach, and I am hoping that the Queensland state government will take note.

Once again I am asking in this House that the Queensland Premier, Mr Beattie, look at the impact that the review of special needs funding by Education Queensland has had on disabled children and their families. Many disabled children had their teaching support seriously cut, which resulted in special-needs children being placed in ordinary classrooms with little or no assistance. In late 2003, Education Queensland dropped the ascertainment level of nearly 1,000 disabled children, which in turn meant their teaching support was reduced or even entirely dropped.

At the special education development unit at Mount Warren Park, a school in my electorate, parents who do secure a place in this unit for their children have been dismayed to find that a vital service like speech therapy is virtually nonexistent. I repeat: the vital, basic service of speech therapy is nonexistent. We are talking about children aged from three to six years, a vital stage for speech development. These children are being denied access to speech therapy for whole semesters at a time. When they do have contact with a therapist, it is generally only for a very short period, one day a week —and that is only if they are lucky, as the parents tell me. Mainly the therapist conducts assessments, rather than actually working with the child to make improvements. As a mother, I can only imagine how frustrating this situation is for parents of children with special needs.

These parents have been fundraising like crazy to pay for an additional speech therapist to help their children, but, as this is only a small unit, that is an enormous task to ask of these parents. After all, we are talking about the basics here. As one parent put it to me, `Communication is the essence of our society.' If we cannot give our young children the opportunity to communicate to the very best of their ability, what chance do they have to overcome any difficulties they may face later on in life

Despite ongoing representations from me and from parents —we even took petitions up —this situation remains unchanged. The local Labor state member, Margaret Keech, is unwilling or unable to do anything, and the state government just do not seem to be listening. They do not seem to be listening to her, the parents, me or our special needs support groups within our community.

I am hoping that, eventually, the introduction of the disability education standards will support our efforts to lobby the state government and add weight to the concerns of parents, who know the needs of their children best. It should not have to come to this. I should not be standing here once again. It is simply common sense to ensure that funding for speech therapy services for young children seeking to overcome development and learning difficulties should be allocated to this school so these parents' children at least get a chance in life.

Again, I ask the Queensland Premier to have Education Queensland urgently review the level of support and assistance available to children with disabilities, including those with mild impairment. These are often the ones who slip through the cracks, come out the other end of the system and —not having any support —have problems later on in life. This is a shocking situation. More resources clearly need to be allocated to help these special needs children. While various state governments try to dodge it, it is very clear that responsibility for the delivery of primary and secondary education services rests with them. They have a duty to deliver these services to everyone, including these people living with disabilities.

The Queensland government has received and continues to receive more funding than expected through GST revenue. It is worth noting that every cent of the GST goes directly to the states and territories to fund such things as roads, schools and hospital services. Every state and territory has received more than they expected in GST revenues in the past few years, yet they have failed to properly deliver the basic services that they really ought to. The Labor Party are always big on their rhetoric when it comes to services, but their track record at state government level is one of not just inaction but of actually cutting funding for many vital services. The states really need to be brought to account.

Even in relation to this bill, several states tried to delay the introduction of the education standards. As the members of the Disability Discrimination Act Standards Project put it in their press release of 11 July 2003:

We are disappointed that some of the States and Territories attempted to once again delay the introduction of the Education Standards.

To our delight, the Commonwealth Minister, Dr Brendan Nelson, has exercised his leadership. Dr Nelson recognises that after seven and half years of development, the Education Standards are now in agreement, and that legal and financial concerns have been resolved through independent inquiry.

I, too, commend the minister and thank him for his leadership on this issue.

I am very proud to be part of a government that is taking the lead on these issues and that is working hard to improve these services and support the people who are living with disabilities. I look forward to working within government to secure more funding for effective programs. As I said, there is still more to be done in my electorate, but I will continue the fight down here for them. Unfortunately, I am going to conclude my speech very shortly because I am suffering from the flu and a sore throat, and I do not think it is going to do anyone any good for me to stand here coughing for the rest of this speech.

In closing, I would like to congratulate volunteers and providers of disability services within my electorate of Forde. They are all very dedicated and caring people. They work extremely hard to ensure that people and children with disabilities have a better and fulfilling quality of life.

Mr MICHAEL FERGUSON   (Bass) (1.14 p.m.) —I rise to speak in favour of the Disability Discrimination Amendment (Education Standards) Bill 2004 . As we have heard already, the bill proposes relatively minor amendments to ensure that the disability standards for education are supported to the greatest possible extent by the legislation. The standards do vary the operation of the DDA in some minor ways. Accordingly, the bill was prepared following legal advice that it is desirable to amend the legislation to remove any uncertainty and to avoid any potential challenges to its validity.

The disability standards for education will be applied to government and non-government providers in all education sectors: preschool, school, vocational education and training, higher education and even adult and community education. They will also apply to organisations whose purpose is to develop and accredit curricula and courses —if you like, third-party providers. This is to ensure that these bodies consider the needs of students with disabilities up front in the design and accreditation of curricula which will be used by other schools and education providers. The standards cover the areas of enrolment; participation; curriculum development, delivery and accreditation; student support services; and the elimination of harassment and victimisation, to the extent that that is possible. These areas have been identified as covering all areas required for a student's access to and participation in education or training.

This legislation also provides reasonable adjustments to put students with disabilities on the same basis as other students. The standards recognise that to overcome the disadvantage arising from their disability students with disabilities need to be treated differently to remove or reduce barriers to their participation in education. The standards operate on the principle that students with disabilities should be provided with opportunities that place them on the same basis as other students so that they can achieve and realise their own potential in education and training. It is, of course, the goal of every parent in Australia to see their child achieve their potential, whether or not they have a disability or special needs.

To achieve this, the standards set out a process for determining and providing a reasonable adjustment. This is a measure or an action that enables the student to enrol and participate. As the forms of disability recognised by the act and the standards are wide ranging, in order to identify and make an adjustment which is appropriate to that student's disability education providers are required to consult with the student or their associate or parent. The consultation may also include an independent expert opinion to assist in that process. An adjustment is only required to be reasonable, and this is an important point. That is to balance the interests of all the parties who are affected, including the student with the disability, the school or education provider, staff and also other students.

I am advised that in any one year in Australia there are more than 200,000 students with a disability across all of the different sectors that I have described. This number is, interestingly enough, increasing over time. Definitions do vary across the sectors for reporting these statistics. In the school sector the number of students with disabilities is reported by the state and territory governments and non-government school authorities, while in the higher education and vocational education and training sectors students are self-identified. Notwithstanding these definitional issues, in 2003 there were 210,000 students with a disability across all sectors. It is important to note that the disability standards for education have the potential to make a significant difference by ensuring that all of these students can participate in education on the same basis as students who do not have special needs or disabilities.

With regard to Australian government support for the education of students with disabilities, I believe it is important to place on the record the excellent work that has been carried on by this government, not just in the current parliament but also previously, and to place on the record what has been achieved. Perhaps towards the end of my remarks I will identify some areas where more work is required. While, as we know, the primary responsibility for the provision of education and training rests with providers —and the Australian government is of course not a provider of education and training —the government does provide substantial assistance to state and territory and also non-government education and training authorities. This happens throughout the education sectors and, importantly, includes students with special needs and disabilities.

In the school sector the Australian government's financial assistance to the states and territories is significant. It is designed to improve the educational outcomes of all students, including those with disabilities, and is largely provided through three programs. Of these, the general recurrent grants program is the main source of Australian government funding and we have heard much about this, particularly towards the end of last year when the bill was passed, with an estimated $20.1 billion being provided to Australian schools in the 2001-04 quadrennium.

The Strategic Assistance for Improving Student Outcomes program, or SAISO, is the Australian government's major targeted funding program to improve the learning outcomes of educationally disadvantaged students in government and non-government schools. This is particularly the case in literacy and numeracy and for students with disabilities. Passed by parliament on 13 December last year was the Schools Assistance (Learning Together —Achievement Through Choice and Opportunity ) Bill 2004. As we have heard, this will deliver a record $33 billion package of funding for Australian schools in the next quadrennium, 2005-08. This funding includes an estimated $2.1 billion for a new, overarching targeted program, the Literacy, Numeracy and Special Learning Needs Program, which will be targeted at the most educationally disadvantaged students, including those with disabilities.

In the vocational education and training sector, the Australian government has provided $1.15 billion to the states for VET in 2004. Under the national VET arrangements, responsibility for both public and private training systems lies with the states and territories. However, the Australian government has significantly increased VET funding for people with a disability, under its Australians Working Together welfare reform package, with an additional $9 million being available in 2004 for more training places and learning supports for people with disabilities. This will grow to over $11 million in 2005 and to more than $22 million in 2006, once the Senate passes legislation associated with this government's welfare reform package. The focus of activity in Bridging Pathways, a blueprint for improving opportunities for people with a disability, agreed to by state and territory ministers of training in June 2000, has been to improve the VET system's capacity to respond to the needs of people with a disability, including ensuring that resources and supports are available at the point of delivery.

In the higher education sector, universities are expected to provide the infrastructure and support that is necessary to ensure the best and the most effective participation for all their students, again, including those with a disability. In 2005, the Australian government will provide funds under the Commonwealth grants scheme of almost $3 billion for the provision of Commonwealth supported university places. As part of the Our Universities: Backing Australia's Future reforms, from 2005 the higher education disability support program will strengthen the focus of disability support in Australian higher education providers and increase that funding to over $6.5 million. This program does consist of three parts. First, there is additional support for students with disabilities, which provides funding support to higher education providers to assist with the high costs that can be incurred in providing support and equipment to students with disabilities. The second part is the regional disability liaison officers, who will help to facilitate the transition from school to VET or higher education and then, hopefully, on to employment. The third part will be performance based disability funding support, which encourages higher education providers to implement strategies to attract and support schools with students with disabilities.

As I was waiting for my turn to speak just now I was listening to the remarks being made by the member for Forde about the level of support being provided to students across the sectors by the Queensland government. I had a great sense of deja vu as I reminisced about my years as a teacher in the state school education system in Tasmania . It was very disappointing to hear that it is happening in other states also. But, that being no surprise, this morning as I was talking with a Labor colleague on, I suppose, a collegial basis, they remarked that, even though they were in the same party as all of the state governments around Australia, despite that sense of camaraderie, it was so difficult to get their state counterparts to pull their weight.

In closing, I would like to bring to the attention of the House the situation in Tasmania . Tasmania has a policy for students with disabilities which, I think, is complimented around Australia —that is, the policy of inclusion. Without going into the ideological arguments for or against inclusion —I am not about to do that today —it is important to note that inclusion has been sold to the community, and even to parents, as providing a choice for children. That choice is said to be between going to a special school —or, if you like, a specialist school for students with a disability or special needs —and going to a mainstream school. That choice is very important. It should not be lost on those of us in parliament or in the community who are not necessarily parents or, indeed, parents of children with special needs that it is in fact not the politicians, the teachers or the principals who care most about the students concerned —it is the parents. They, after all, are the ones who brought the children into the world. Undisputedly, they are the ones who love the children and have their welfare at heart the most. Hence, the choice is so important I would argue that the implementation of the inclusion policy in Tasmania has been to utterly remove that choice.

I witnessed students come into my classroom, say, in grade 8 of high school, having come from a specialist school, and they struggled. They found it difficult. In my own extended family, I have a similar story where the child and parents were put under great pressure by the educational authority to move the child from a specialist school, where the classes were small, the teaching assistance was intensive and where the care factor was so very high. The school had teachers specially trained just for the purpose of teaching children with a disability. That is not to say it was easy, but it was a specialist environment and a very nurturing place for the child. They were pressured to go to what we shall call a regular mainstream school, such as mine.

That being the case, and being the case with many different students, it has had a great result in changing the profile of each of the two school sectors. This has meant a reduced resource base available to special schools. By continuing to put pressure on parents and students to move from specialist schools into mainstream schools there was, of course, an impact on the funding arrangements for each school concerned. The specialist schools had fewer students therefore they received less funding support, less teacher allocation and less resourcing in terms of programs available to the students who were left. It also allowed the government to argue later that there was reduced demand in these specialist schools. That is the great hypocrisy of what happened. First arguing that there was a reduced demand on these schools, they then made a case that some of these schools should be closed down. Over time, the choice available to parents, even for that small community of parents and students, was diminishing and being eroded by the day. That has made me extremely angry. I think it has made a lot of parents very angry in Tasmania .

It breaks my heart to hear that it is even happening all around Australia , by state governments who are negligent, who do not seem to care about the students given to their care and who I think are showing a great disregard. It breaks my heart because I see that schools in my electorate —like St Michael's school and like St George's school —are being treated like cannon fodder for education authorities who do not want to spend the money. They do not seem to want to appreciate —just because they have a nice, cushy life on a politician's salary —that other parents and students find it more difficult and their needs are just as important. I think that is a great tragedy.

I welcome the amendments to the Disability Discrimination Act in that they again reinforce that notion of choice and real support being given to students who need it. I think that if we do not know someone ourselves or if we do not have someone in our own family who suffers from a disability or who has a special need, we forget sometimes in this place what it must be like. I do not think we do appreciate what it could be like to live with that day by day. Of course the school day is just a small fraction of the time of a child's life, most of it being in the care of their parents. I would today call upon all state and territory governments to re-dedicate themselves to providing real choices to parents, to providing real support to students who need it and to providing a real future for these students.

I made the comment earlier in my contribution that really the goal of every parent is to see their child achieve their potential. Today I do not propose to know exactly how to measure that for each child. We are all different and our children are all different. I just argue that parents, being the ones who love their children the most, ought to be given more flexibility and more support. I think that there would be nobody in this place who would disagree with the basic tenets upon which I have based my argument. I call upon the state government to review the level of funding support and structural support available to this very important sector of the educational program in Tasmania .

Mr PYNE   (Sturt —Parliamentary Secretary to the Minister for Health and Ageing) (1.32 p.m.) —Thank you, Mr Deputy Speaker McMullan. I have not seen you in this role before, so I welcome you to the chair. I would like to thank the members of this House who have taken part in the debate on the Disability Discrimination Amendment (Education Standards) Bill 2004 , particularly the member for Gellibrand and the Deputy Leader of the Opposition. Importantly, for the heartfelt and intelligent contributions on our side of the House I thank the new members for Kingston and Bass and the member for Forde. I thank them for the role that they played in the debate.

The Disability Discrimination Act 1992 provides that the Attorney-General may formulate disability standards in a range of areas, including the education of persons with disabilities. There are already disability standards governing accessible public transport. These came into effect in October 2002. It is clear that the transport standards have already benefited people with a range of disabilities, as well as other members of the public, including the elderly and parents with prams. Draft standards for access to premises were also released for public consultation in 2004. Under section 31(2) of the Disability Discrimination Act, disability standards formulated by the Attorney-General must be tabled in parliament. Once they are in effect it is unlawful to contravene a disability standard. The purpose of disability standards is to clarify and elaborate the obligations imposed by the Disability Discrimination Act.

The draft disability standards for education have been developed over many years. Their development has involved extensive consultation with government and non-government education providers, the disability sector and other interested members of the public. In June 2004 the government released for public information a draft of the standards, along with accompanying guidance notes to assist in their interpretation. The draft of the standards differs from the operation of the act in minor ways, so it was necessary to make these amendments to the act to ensure that the standards are properly supported.

In particular, this bill will amend the Disability Discrimination Act to introduce and define the term `education provider'; provide that it is unlawful for education providers to discriminate on the ground of disability in the development or accreditation of curricula or training courses; extend the defence of unjustifiable hardship in education to post-enrolment situations; clarify that disability standards may require reasonable adjustments to be made in order to avoid unlawful discrimination on the ground of disability; provide that education providers may be required to develop strategies and programs to prevent the harassment and victimisation of students with disabilities; and clarify that education providers may not be excused from complying with a standard of education on issues relating to programs that prevent harassment or victimisation on the ground of unjustifiable hardship. When implemented, the draft disability standards for education will specify how education and training are to be made more accessible to students and prospective students with disabilities, without imposing unduly onerous burdens on education providers. They will clearly describe the obligations of education providers in relation to students with disabilities, and provide guidance on how to meet those obligations.

This bill was referred for inquiry and report to the Senate Legal and Constitutional Legislation Committee. The Senate committee reported on 8 December 2004. A majority of the committee recommended the bill be passed without amendment and urged the government to introduce the final education standards into parliament as soon as practicable after the passage of the bill. The bill was then passed by the Senate without amendment. The support for the passage of the bill has been very positive, and we thank the Senate.

There have been a few issues raised in the debate by the member for Gellibrand and the Deputy Leader of the Opposition. The first of those has been the costs of implementation of disability standards for education, which I would like to deal with. The standards and the amendments to the Disability Discrimination Act make it clear that education providers will not be required to make adjustments for students with disabilities if those adjustments would cause them unjustifiable hardship. As the regulation impact statement shows, there should be no, or very minimal, additional costs incurred in implementing the education standards if providers are already meeting their obligations under the Disability Discrimination Act.

The government already provides substantial assistance to the states and territories and non-government education and training authorities in all education sectors, including for students with disabilities. The funding includes an estimated $2.1 billion for a new overarching program of literacy, numeracy and special learning needs to be targeted at the most educationally disadvantaged students. I very strongly support this. My father was the founding vice-president of SPELD, in South Australia . SPELD is the specific education learning difficulties non-government organisation, which was established by my father in South Australia and around the country in 1975 or 1976 because one of his children suffered from dyslexia. I digress momentarily. My father was made father of the year for South Australia in 1975 because of his work with SPELD and specific learning difficulties. I very strongly support the role of the government in providing that money and support for people with learning difficulties.

Another issue that the member for Gellibrand and the Deputy Leader of the Opposition raised was the possible undesirable consequences of extending the defence of unjustifiable hardship. The government is keen to ensure that, when they are formulated, the disability standards for education reflect an appropriate balance between the interests of a student or a prospective student with a disability and the effects on the education provider of making an adjustment to accommodate the student. At the moment, it is only possible for an education provider to claim unjustifiable hardship at the point of enrolment of a student with a disability. The amendment in this bill to extend the defence of unjustifiable hardship beyond the point of enrolment will avoid the undesirable effect of discouraging educational institutions from admitting students with disabilities because they are concerned about the potential future costs of accommodating the student. The experience has been that some educational institutions refuse enrolment on the basis of potential concerns about disability when, if they could enrol students and see how they go, the institution may find they did not have any difficulties that would have precluded their being enrolled in the first place. This is an important step.

This bill will clear the way for draft disability standards for education, which have been the product of extensive consultation with industry, government and disability sector representatives. The standards are a practical way of clarifying the requirements of the Disability Discrimination Act. They will provide certainty for education providers about their obligations under the Disability Discrimination Act, and they will clarify the rights of people with disabilities with respect to education and training. There is no doubt that one of the key issues that members of parliament deal with that is heartfelt and heart-rending for all of us is the difficulties that people with disabilities face that those of us without a disability have not had to face. I was the Parliamentary Secretary to the Minister for Family and Community Services for 12 months, and I listened to many very difficult and challenging stories from parents who are trying to help their children have as normal lives as possible. I am sure that you, Mr Deputy Speaker McMullan, and every member of parliament tries to do everything they can and more to help those parents who come to them because they are having difficulties with their children who have disabilities.

I welcome this bill because it creates a smoother process to enrol students with disabilities and to give them the support they need. I hope the states and territories and those members of the Commonwealth who will implement aspects of the legislation do so with good grace in the hope that they can help people with disabilities to have as normal a life as possible, which they deserve. I thank the House.

Question agreed to.

Bill read a second time.

Mr PYNE (Sturt —Parliamentary Secretary to the Minister for Health and Ageing) (1.37 p.m.) —by leave —I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

 

 

Senate:

17 November 2004

Senator IAN CAMPBELL   (Western Australia —Minister for the Environment and Heritage) (9.34 a.m.) —I table the explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard .

Leave granted

Disability Discrimination Amendment (Education Standards) Bill 2004

This Bill is an important precursor to the formulation of disability standards for the education of people with disabilities.

The Disability Discrimination Act 1992 provides that the Attorney-General may formulate disability standards in a range of areas, including the education of persons with a disability.

Draft Disability Standards for Education have been developed over many years. Their development has involved extensive consultation with government and non-government education providers, the disability sector and other interested members of the public.

In June 2004 the Government released for public information a final draft of the Standards, along with accompanying Guidance Notes to assist in their interpretation.

The final draft of the Standards differs from the operation of the Act in minor ways. Therefore, it is necessary to make minor amendments to the Act ensure that the Standards are supported to the greatest possible extent.

One amendment is to extend the defence of `unjustifiable hardship' to aspects of education beyond the point of enrolment. The others are to introduce a new definition of `education provider', and to clarify the position with respect to `reasonable adjustments' and the harassment and victimisation of students with disabilities.

When implemented, the draft Disability Standards for Education will specify how education and training are to be made more accessible to students and prospective students with disabilities, without imposing unduly onerous burdens on education providers. They will clearly describe the obligations of education providers in relation to students with disabilities, and provide guidance on how to meet those obligations.

The Standards will cover government and non-government providers in all sectors: pre-school, school, vocational education and training, higher education and adult and community education.

The Productivity Commission's recent Review of the Disability Discrimination Act identified `exclusion from, and segregation in, education' as `one of the most serious forms of disability discrimination'.

Disability discrimination in education can manifest itself in many ways, including refusal of enrolment, exclusion from sports or other activities, negative attitudes and unsuitable or inflexible criteria.

This Bill will amend the Disability Discrimination Act to make it clear that disability standards may require education providers to make reasonable adjustments to avoid discriminating on the ground of disability in relation to education and training.

What is a `reasonable adjustment' will depend on the circumstances of the individual case, but may involve something as simple as allowing a student additional time to complete a test, or supporting the use of assistive computer technology.

Education providers will not be required to make adjustments for students with disabilities if making those adjustments would cause them unjustifiable hardship.

The Productivity Commission's Review of the Disability Discrimination Act also noted that the absence of an unjustifiable hardship defence after the point of enrolment has created problems for educational institutions. It may be inadvertently aggravating discrimination by being a disincentive to providers to enrol students with disabilities.

The Government considers that more inclusive education and training can play a significant role in changing broader community attitudes about people with disabilities, and will play a crucial part in preparing people for participating more fully in the workforce.

Passing this Bill is the next step in ensuring that outcome.

8 February 2005

Debate resumed from 17 November 2004, on motion by Senator Ian Campbell :

That this bill be now read a second time.

Senator CARR   (Victoria) (6.35 p.m.) —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 curriculum 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 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 should 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 that the schools should be socially just so that:

... students' outcomes for 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' socioeconomic background or geographic location.

Frankly, where 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 states said they agreed with the content and intent, the states and territories 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 is the recommendation of 2002 Senate inquiry. It is important on issues such as this that the Commonwealth should in fact raise the bar. Just as commentators agree that the role of the school principals appears to be crucial in establishing and maintaining a climate of inclusivity 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 questions addressed in this bill, like those addressed in the existing act, are in fact very serious issues. 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 is commissioned and policies are evaluated. The definition of disability becomes particularly important when it comes to providing mechanisms 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.

9 February 2005

Debate resumed from 8 February, on motion by
Senator Ian Campbell:
That this bill be now read a second time.

Senator CARR (Victoria) (9.32 a.m.)—Last night
when I spoke to this bill I made the point that, while I
support the government’s introduction of new standards
and its taking the lead in that regard, I express
profound disappointment that it has taken so long for
an agreement to have been reached between the Commonwealth
and the states on this issue. It is a dispute
that I note is now well over 10 years old, and it is yet
another example of the difficulties that we face in
building an education system based on equality and
justice. Nonetheless, I strongly take exception to the
proposition that the Commonwealth has now put to this
parliament. I support the measure, but it has not provided the resources to back up the changes that it is now proposing to introduce.

As consequence, the simple proposition is advanced
by the opposition that the Commonwealth ought to put
its money where its mouth is. It ought to be saying,‘Yes, we support justice for all our citizens, particularly with regard to their educational opportunities.’ We
ought to be able to provide opportunities for all students
in this country to maximise their skills and to
make sure that they take full advantage of all of their
capacities. On the other hand, we should not say that
this is entirely a matter for the states to deal with and
that the cost should be shared for these high standards.

With that in mind, I argued last night that the Commonwealth
ought to put its money where its mouth is.
The other proposition that needs to be highlighted in
this debate is that, while it is all very well for the
Commonwealth to move advances in setting a framework
for higher standards and definitions—something
I strongly support—the fundamental problem comes
back to attitude. It is not just a question of money; it is
also a question of attitude. The principal source of discrimination
in education is often attitude. It is the view
that some people are not entitled to equal treatment, are
not entitled to enjoy the full benefits of the education
system. So, with that in mind, I am very concerned that
some of the measures in this bill to extend the principles
of undue hardship may well be taken advantage of
by some education authorities where they have failed
to meet their commitments in the past. We know that is
the case because there are legal precedents for it,
whereby some particular school authorities have taken
the view that some students should not be enrolled in a
school because it would place an undue hardship on
that school. The measures in this bill extend the right
of schools to take an attitude that says that undue hardship
may be inflicted after a student is enrolled. I am
concerned that that may cause a problem where the
attitude of some school authorities is fundamentally
based on discrimination.

This is particularly important, given that the state
education systems are obliged to take all comers. That
is one of the fundamental principles of our public education
system in this country. That is not to say that
some school authorities are without blame in this matter.
I know that some state authorities have sought in
the past to avoid their responsibilities. Nonetheless, the
fundamental principle remains that it is more difficult
for public education authorities to deny enrolment opportunities
to students with disabilities. The same cannot
be said for the private system, which is much more
able to act in a discriminatory way in its new enrolments
and continuing enrolments of students with disabilities.

With that in mind, I strongly urge the Commonwealth
to take the opportunity with this particular
disability standard to develop a new, enlightened approach
to professional development for teachers, lecturers,
school principals and those who make decisions
with regard to the requirements placed on them by
these new standards. It is important that the theory of
educational equality is matched with the practice of
educational equality.

There could be no more fundamental human right
with regard to a social democratic society than the capacity
of each and every citizen to share in the resources
of that society, particularly when it comes to
education. So I take the view that if we are to be serious
about removing discrimination towards people
with disabilities then we have to make sure that the
education system is genuinely inclusive. In that context
we take the view that the government has a particular
responsibility at the Commonwealth level to support
professional development, and I am disappointed that
that opportunity has not been seized by the government.
I would urge them to change their attitude in that
regard and to make it the case that this government are
able to ensure that human rights and equality of opportunity
for all Australians, particularly our disadvantaged
citizens, are able to be exercised.

Labor supports
the Disability Discrimination Amendment (Education Standards) Bill 2004 [2005]. We strongly believe that
the Commonwealth must immediately undertake negotiations
with the states and territories and education
authorities about improving the resource base to support
these new standards. (Time expired)

Senator GREIG (Western Australia) (9.38 a.m.)—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, those 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 nongovernment
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 oneoff
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 nondiscriminatory
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 tothe 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, in improving their access and in 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.

Senator TROETH (Victoria—Parliamentary Secretary
to the Minister for Industry, Tourism and Resources)
(9.53 a.m.)—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 nongovernment
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 nongovernment
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:

The—
Victorian—
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.

Senator ELLISON (Western Australia—Minister
for Justice and Customs) (10.08 a.m.)—I would like to
thank senators for their contributions to the debate on
the Disability Discrimination Amendment (Education
Standards) Bill 2004. At the outset, can I say that the
government is strongly committed to ensuring that all
students are able to enjoy the benefits of education and
training. The bill makes minor amendments to the Disability
Discrimination Act that will ensure that the disability
standards for education are fully supported.
This bill was referred for inquiry and report to the
Senate Legal and Constitutional References Committee,
which reported on 8 December last year. A majority
of the committee recommended that the bill be
passed without amendment and urged the government
to introduce the final education standards into parliament
as soon as practicable after the passage of the bill.

The support for the passage of this bill is very positive.

The primary benefits of the disability standards for
education will be the clarification and elaboration of
the obligations of education and training providers in
relation to students with disabilities under the Disability
Discrimination Act and the provision of guidance
on how to meet these obligations. Secondly, education
providers will have increased certainty in knowing that
compliance with the disability standards for education
is a defence to a complaint made under the act’s general
provisions. Thirdly, persons with disabilities will
benefit from clearer procedures in relation to the obligations
upon an education provider to make reasonable
adjustments and the need to consult with the student or
his or her associate.

When adopted, the disability standards for education
will clarify when and how a school needs to consult
with a student with a disability. For example, a parent
might accompany a child with a disability to school,
and the school might need to assess with the parent
what, if any, adjustment would be necessary in order
for the student to participate in the school and its programs
on the same basis as other students. I have seen
examples of this on visits to schools, such as the installation
of ramps, or signs for those who have visual impairments.
These are practical issues which really can
address a student’s disability.
It is important that there is a process of consultation
with the student or the student’s associate to decide
whether any adjustments are necessary. This consultation
would include an assessment of the likely effectiveness
of the adjustment for the student with a disability
as well as its impact on other students. The student’s
associate may not be a parent. In some cases, an
associate might be a foster-parent, guardian, partner or
another person with a genuine relationship, as set out
in the act.

Examples of the type of adjustments that
might be appropriate include a student with a communication
or learning disability being allowed extra time
to complete an examination or providing assisting
computer technology for a student with visual impairment,
as I mentioned before.

Of course, most providers already make adjustments
to meet the needs of students with disabilities. By clarifying
the obligations of providers and how they can be
met, the standards will ensure that all students with
disabilities are able to participate in education on the
same basis as other students. Given the importance of
the disability standards for education to people with
disabilities, it is important that this bill be passed as
soon as possible. Passage in the Senate today is important
to demonstrate support for these standards. It is an
important milestone which will be well received by
education providers and the disability sector. The standards
will go a long way towards removing unlawful
discrimination against people with disabilities participating
in education or training.

A number of issues were raised during the debate.

Senator Carr raised some issues and I would like to
address those. Firstly, I reject Senator Carr’s assertion
that the government has given scant regard to the costs
borne by education providers. The standards and the
amendments to the Disability Discrimination Act make
clear that education providers will not be required to
make adjustments for students with disabilities if those
adjustments would cause the providers unjustifiable
hardship. In addition, there should be no or very minimal
additional costs incurred in implementing the education
standards if providers are currently meeting their
obligations under the act. Of course, the standards clarify
existing obligations

On 17 November 2004 my colleague the Minister
for Education, Science and Training, Dr Brendan Nelson,
introduced legislation containing a $33 billion
package of funding for Australian schools for the 2005-
08 quadrennium. The funding includes an estimated
$2.1 billion for a new overarching targeted program for
literacy and numeracy and special learning needs targeted
at the most educationally disadvantaged students,
including students with disabilities. This money will be
shared among the government, independent and Catholic school sectors. The minister for education has also
offered to contribute to the development of professional
development materials to support the introduction
of the standards. These are all very positive aspects—

Senator Carr—They are very weak!

Senator ELLISON—They are not weak, as Senator
Carr asserts. Of course, Senator Carr raised some other
issues. One of them was: would the extension of unjustifiable
hardship increase the disadvantage for students
with disabilities? The government is keen to ensure
that, once formulated, the education standards will reflect
an appropriate balance between the interests of a
student, or the prospects of a student, with a disability
and the effects on the education provider of making an
adjustment to accommodate that student. The amendment
to extend the unjustifiable hardship defence beyond
the point of enrolment will avoid the undesirable
effect of discouraging educational institutions from
admitting students with disabilities because they are
concerned about the future potential unjustifiable costs
of accommodating the students. In the Finney v Hills
Grammar School case, the extension of unjustifiable
hardship would have meant that the school could have
admitted Scarlett Finney safe in the knowledge that, if
future adjustments were necessary, it would not be required
to make them, causing the school unjustifiable
hardship.

In conclusion, the development of the draft disability
standards for education—which will be supported
by the amendments in this bill—are the product of extensive
consultation with industry, government and
disability sector representatives. The standards are a
practical way of clarifying the requirements of the Disability
Discrimination Act in the area of education.
They will provide certainty for education providers as
to their obligations under the Disability Discrimination
Act and will clarify the rights of people with disabilities
in relation to education and training. As I have
said, this bill has wide support. Its passage should proceed
as speedily as possible. I commend the bill to the
Senate.

Question agreed to.
Bill read a second time.
Third Reading
Bill passed through its remaining stages without
amendment or debate.