|
Dear All,
Below is a submission from PWD NSW on the DRAFT DISABILITY STANDARDS ON EDUCATION, I think we all
should step back, take a breath and seriously consider whether or not Standards are in our best
interest.
Your thoughts please.
Frank HB
Dear colleagues:
DRAFT DISABILITY STANDARDS ON EDUCATION
I am writing to provide our views on the draft Disability Standards in Education developed by the
Ministerial Council on Education, Employment, Training and Youth Affairs Taskforce on Disability
Standards in Education.
In brief, PWD believes the draft Standards are seriously unsatisfactory in a number of important
respects. We are therefore strongly opposed to the adoption of the draft Standards in their current
form. In our view, the draft Standards ought to be withdrawn, and either not proceeded with at all
(leaving enforcement of the DDA in this area to the complaint based system), or be very
substantially revised so as to incorporate a full embodiment of the rights of students with
disability and their associates under the DDA.
As preface to our comments on the draft Standards, we wish to note that we are cautious, but not
opposed in principle, to the development of Standards in Education under s 31 of the DDA. In our
individual advocacy work, we deal on a daily basis with complaints of discrimination in the
education system, and are brutally aware of the enormous difficulties individual complainants face
in seeking to enforce their rights under discrimination legislation against indifferent and even
hostile education providers. We therefore view positively those provisions of the DDA that provide
for systemic approaches to the elimination of discrimination.
However, it must always be remembered that Standards not only have the potential
to eliminate discrimination. Unless Standards are set at an adequate level, they also
have the potential to entrench and legitimise discrimination. Nor do Standards, of themselves,
avoid the difficulties of the complaints-based system for those people discriminated against. There
is nothing to suggest that education providers will be any more responsive to rights of people with
disability as articulated in a Standard in Education, than they are to those rights as articulated
in the Act under which these Standards are made. It will therefore still fall to people
discriminated against to seek to enforce their rights through the complaints-based system. We also
note that the existence of a Standard in Education has just as much potential to add complexity and
difficulty to the prosecution and determination of education complaints, as it does to bring
certainty and simplicity to these matters. It all depends on the terms of the Standards themselves.
Against this, it must be recognised that in spite of the enormous difficulties faced by
complainants, and the variable quality of education decisions handed down under anti-discrimination
legislation around Australia, the complaints-based system has nevertheless resulted in substantial
outcomes for some individuals, which have reverberated across the education system. It is arguable
that these reverberations will have as much systemic influence in the elimination of discrimination
as a Standard in Education.
The potential systemic impact of a Standard in Education must therefore be rigorously assessed in
light of its proposed terms, and then weighed against the broader compliance promoting effects of
the complaints-based system as it currently operates.
This evaluative exercise is all the more significant in view of the fact that if a Standard in
Education is authorised under the DDA, it will, by operation of s 109 of the Australian
Constitution, over-ride all State and Territory anti-discrimination law dealing with education to
the extent of any inconsistency.
In our assessment, the current complaints based system of enforcement (at both the Commonwealth and
State and Territory levels), with all its limitations, has greater potential to promote and protect
the rights of students with disability, than the current draft Standard has.
The Standards are so deficient in our view that we feel it is inappropriate for us to engage in a
detailed critique of their particular provisions. We therefore propose only to outline our
objections in broad terms:
* The drafting of the Standards is mean-spirited and defensive in character. The Standards appear
to us to minimise, and even to detract, from the rights of students with disability and their
associates under the DDA. They certainly take us no further than the State integration policy in
NSW, and indeed, appear to us to have the potential to undermine that policy. The primary interest
served by the current draft Standards is that of education providers in seeking to minimise and
avoid their obligations and liabilities, and in defending complaints, under anti-discrimination
legislation. The interests of students with disability have clearly been of secondary consideration.
* We seriously object to the extension of the operation of the defence of unjustifiable hardship
beyond the area of enrolment. There are strong legal and policy reasons why this ought not to
occur. In our view, extending the defence beyond enrolment is beyond the power conferred by the Act
itself – the Standard cannot rise above the Act. In any event, once a student is enroled he or she
ought to be able to rely upon the education provider to make the adjustments he or she requires
without the provider later claiming such adjustments would constitute an unjustifiable hardship,
with all the disruption this would inevitably cause.
* It appears to us that the draft Standards have been written almost entirely with the compulsory
education sector in mind. They do not readily relate to the voluntary education sector, including
to higher and adult education, to which they would nevertheless apply. This is very seriously
problematic, as it has the potential to bring confusion and complexity to the prosecution and
determination of complaints in the voluntary education sector.
* There is a total absence of strategic or systemic elements in the draft Standards. They do not
set targets or timelines for the elimination of barriers to education for students with disability
(for example, the modification of school premises, or curricula, the provision of assistive
technology, interpreter or aid support etc). In the absence of these strategic or systemic
elements, and a commitment to them by education providers, the Standards do not appear to us to
offer anything of value to students with disability and their associates over the current
complaint-based system of enforcement.
* So far as the issue of discrimination concerns service delivery (as opposed to say, physical
access) it is difficult for us to imagine how Standards could comprehensively deal with the range of
highly individualised adjustment measures required by students with disability. The attempt to do
so in the current draft Standards may result in a reluctance by education providers to recognise the
need for adjustment measures not set out in the Standards.
* We are concerned at the emphasis on ‘merit principles’ as the basis for admission decisions. As
it is currently stated, this measure would preclude admission decisions based on affirmative action
programs. Affirmative action may be critical in ensuring access to education, particularly higher
education, for students with disability, as a means of overcoming earlier structural exclusion and
disadvantage in qualifying pathways.
Thank you for the opportunity to contribute these comments. Should negotiation in relation to the
Standards continue, we may lodge a further more detailed submission in the future. If you would
like to discuss this matter further, please contact me on (02) 9319 6622.
Yours sincerely
PHILLIP FRENCH
Executive Officer
People with Disabilities (NSW)
|
