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2002-2003-2004
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
DISABILITY DISCRIMINATION
AMENDMENT (EDUCATION STANDARDS) BILL
2004
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Attorney-General,
the Honourable Philip Ruddock,
MP)
DISABILITY DISCRIMINATION AMENDMENT
(EDUCATION
STANDARDS) BILL 2004
OUTLINE
The Disability Discrimination Amendment (Education
Standards) Bill, as introduced, amends the Disability Discrimination Act
1992 (the Act) in order to ensure that the provisions of the draft
Disability Standards for Education (the draft Education Standards) are fully
supported by the Act. The Attorney-General and the Minister for Education,
Science and Training have released a final draft of the Education Standards,
which are intended to clarify and elaborate the obligations of education and
training providers in relation to students with disabilities under the Act. The
Government intends that the Attorney-General will formulate and table the draft
Education Standards in Parliament immediately following passage of this
Bill.
The Act seeks to eliminate, as far as possible, discrimination on
the ground of disability. Section 22 of the Act prohibits discrimination on the
ground of disability in relation to education. While the Act prohibits
discrimination in very general terms, it does not provide precise guidance on
what is required for compliance.
Section 31 provides for disability
standards to be formulated in a number of areas, including the education of
persons with a disability. The purpose of disability standards is to clarify and
elaborate the obligations in the Act. The draft Education Standards set out the
obligations of education and training providers under the Act in relation to the
education of students with disabilities, and provide guidance on how these
obligations can be met.
It is unlawful to contravene a disability
standard made under section 31 of the Act. While a breach of a disability
standard may give rise to a complaint under the Act, compliance with a
disability standard is a complete defence to a complaint made under the
Act’s general provisions.
The draft Education Standards have been
developed over a number of years, in close consultation with education and
disability sector representatives, as well as representatives of the States and
Territories. Once in effect, the draft Education Standards will be reviewed at
regular intervals to ensure that they remain the most efficient and effective
mechanism for achieving the objects of the Act in the area of
education.
The Bill amends the Act to support the draft Education
Standards by:
- introducing and defining the
term ‘education provider’
- providing that it is unlawful for
‘education providers’ to discriminate on the ground of disability in
the development or accreditation of curricula or training
courses
- providing that education providers may
be required to develop strategies and programs to prevent the harassment and
victimisation of students with
disabilities
- extending the defence of
‘unjustifiable hardship’ in education to post-enrolment situations,
and
- clarifying that disability standards made
under section 31 may require reasonable adjustments to be made in order to avoid
unlawful discrimination on the ground of disability.
The purpose of this
Bill is to amend the Act in these minor areas to ensure that the draft Education
Standards are fully supported by the Act, so they can be formulated by the
Attorney-General as soon as possible, to improve the position of people with
disabilities in the area of education and training.
FINANCIAL IMPACT
STATEMENT
It is not anticipated that the passage of this Bill will
have any financial impact.
NOTES ON
CLAUSES
Clause 1: Short Title
1. The Act, once
enacted, may be cited as the Disability Discrimination Amendment (Education
Standards) Act 2004
Clause 2: Commencement
2. This clause
provides that the provisions of the Act commence in accordance with the table
provided. The table provides that Sections 1, 2 and 3 commence on Royal Assent.
The provisions in Schedule 1 commence on a single day to be fixed by
Proclamation. This is intended to allow the amendments to commence at the same
time as the draft Education Standards. In accordance with usual practice, if
they do not commence within 6 months of Royal Assent, they commence on the first
day after the end of that 6-month period.
Clause 3:
Schedule(s)
3. The Disability Discrimination Act 1992 is
amended as set out in Schedule 1 to the Bill.
SCHEDULE 1
Item 1
– Subsection 4(1)
The draft Education Standards employ the
general term ‘education provider’ to describe educational
authorities, educational institutions and organisations whose purpose is to
develop or accredit curricula or training courses. However this term is not
currently used nor defined in the Act.
When proclaimed, this item will
introduce a definition of ‘education provider’ to subsection 4(1) of
the Disability Discrimination Act 1992 (‘Interpretation’).
The term ‘education provider’ will be defined to include an
‘educational authority’ and an ‘educational
institution’, both of which are already defined, as well as an
‘organisation whose purpose is to develop or accredit curricula or
training courses used by other education providers’.
Education
providers will have obligations under section 22 of the Act, and are also
referred to in section 31.
Item 2 – After subsection
22(2)
The draft Education Standards oblige education providers to
avoid discriminating on the ground of disability in relation to all aspects of
education, including enrolment, participation, curriculum development and
accreditation, student support services and the elimination of harassment and
victimisation. However section 22 currently does not place obligations on the
activities of organisations whose purpose is to develop or accredit curricula,
training packages or courses which are delivered by other bodies.
This
item will insert a new subsection 22(2A) into the Act, to provide that it is
unlawful for education providers to discriminate against persons on the ground
of disability by developing or accrediting curricula or training courses that
will exclude them from participation, or otherwise subject them to
detriment.
Item 3 – Subsection 22(4)
Subsection 22(4)
of the Act currently limits the ‘unjustifiable hardship’ defence to
refusing or failing to accept a person’s application for admission as a
student. There is currently no defence on which an education provider can rely
after it has enrolled a student with a disability. The draft Education Standards
extend the defence of unjustifiable hardship to all areas of education,
including enrolment, participation, curriculum development and accreditation and
student support services.
This item will replace
the existing text of subsection 22(4) of the Act with text which extends the
‘unjustifiable hardship’ defence to all the elements of education
described in subsections (1), (2) and (2A) of section 22.
‘Unjustifiable hardship’ is defined in section 11 of the
Act, which provides that it is to be determined on the basis of all relevant
circumstances of the particular case, including those listed in section
11.
The draft Education Standards require education providers to develop
and implement strategies and programs to prevent harassment and victimisation of
a student with a disability, or of a student who has an associate with a
disability, in relation to the disability. Subsection 22(4) does not extend the
defence of unjustifiable hardship to the development of these strategies and
programs.
Item 4 - After subsection 31(1)
The draft
Education Standards require education providers to undertake a process to
consult with the student as to whether any adjustments are necessary to enable
them to participate in education on the same basis as students without the
disability, and to identify and make any reasonable adjustments that may be
necessary, unless this would cause unjustifiable hardship.
The draft
Education Standards also place an obligation on education providers to develop
and implement strategies and programs to prevent harassment or victimisation of
a student with a disability, or of a student who has an associate with a
disability, including by other students. They also require education providers
to take reasonable steps to ensure that staff and students are informed about
the obligation not to harass or victimise students on the ground of disability,
and the appropriate action to be taken should such harassment or victimisation
occur.
This item will amend section 31 of the Act in order to ensure that
these provisions are within power.
New subsection 31(1A) will clarify
that disability standards made under this section may require the provision of
reasonable adjustments in order to eliminate discrimination against persons with
disabilities.
This item will also add a provision to provide that
disability standards in the area of education may require education providers to
develop strategies and programs that prevent harassment or victimisation of
persons with disabilities on the ground of disability.
Currently,
provisions in Divisions 3 and 4 of Part 2 of the Act provide that harassment and
victimisation of students and potential students on the ground of disability are
unlawful. These provisions in the Act are not amended by either these amendments
or the draft Education Standards.
However, the Act does not explicitly
require the development of strategies and programs to eliminate harassment or
victimisation on the ground of disability. New subsection 31(1B) provides that
disability standards in relation to the education of persons with disabilities
may require education providers to develop such strategies and
programs.
To avoid doubt, new subsection 31(1C) will also clarify that
education providers may not be excused from complying with a requirement in
disability standards for education to develop and implement strategies and
programs that prevent harassment or victimisation of students with disabilities
on the ground of unjustifiable hardship.